In the Matter of the Petition by

ANTHONY J. PINTO
         at
Naples, FL

P.S. Docket No. DCA 10-360

APPEARANCE FOR PETITIONER:
Gerald G. Smith
Marco Island Post Office

APPEARANCE FOR RESPONDENT:
Lynn M. Chiocchi
Labor Relations Specialist
United States Postal Service

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

           Petitioner, Anthony Pinto, filed a Petition for Hearing on December 27, 2010. Respondent, United States Postal Service, sought to collect from Petitioner a debt in the amount of $1,406.01 alleging that Petitioner was granted sick leave to which he was not entitled. As no genuine issue of material fact was in dispute, I deemed an oral hearing unnecessary, and the parties were invited to submit written materials in support of their respective positions. The following findings are based upon the submissions of the parties.

FINDINGS OF FACT

            1. On November 13, 2008, Petitioner had an annual leave balance of 96 hours (Petitioner’s Agreed Statement of Facts, No. 4)(hereinafter ASF No. _).[1]

            2. On November 13, 2008, Petitioner’s partner, to whom Petitioner was not married, gave birth to a son by cesarean section (ASF No. 2).

            3. As a result of the surgery, Petitioner’s partner was incapacitated and unable to care for the couple’s healthy newborn son (Petitioner’s Arguments (February 18, 2011)).

            4. Petitioner sought and was granted by Respondent 80 hours of Sick Leave Dependent Care (SLDC) from November 13, 2008, through November 25, 2008, ostensibly to care for his partner and his newborn child (ASF No. 6).

            5. Petitioner was paid for a total of 80 hours of sick leave in Pay Period 24/08 and Pay Period 25/08 in accordance with Respondent’s prior approval of SLDC (ASF No. 7).

            6. On or about December 23, 2008, Respondent rescinded the prior approval of SLDC (Petition, Attachment C).

            7. Petitioner subsequently filed a grievance on the issue and a grievance settlement in February 2009 between Petitioner and Respondent prior to this Petition reduced the amount sought by Respondent to 72 hours (ASF No. 8).[2]

            8. Petitioner was served with a Notice of Involuntary Administrative Salary Offsets on or about December 16, 2010, seeking to collect the remaining balance of 72 hours (Petition, Attachment A).

            9. The Debt Collection Act Petition was timely filed.

DECISION

            Under the Debt Collection Act, the initial burden lies with Respondent to establish that a debt exists for which Petitioner is liable. Debbie Eccles, P.S. Docket No. DCA 99-148 (August 26, 1999). In this case, Respondent seeks to collect $1,406.01, which it contends represents 72 hours of sick leave payments erroneously granted to Petitioner commencing on November 13, 2008.[3]

            Respondent maintains that Petitioner was not entitled to SLDC granted to him in November 2008 because he was not married to the mother of the child at the time of their son’s birth, and because his son was born healthy. Respondent seeks to convert the sick leave granted to Petitioner to Leave Without Pay (LWOP), and seeks reimbursement for the payments made to Petitioner. Petitioner argues that if he was not permitted to use SLDC under Respondent’s regulations, he was entitled to Family and Medical Act (FMLA) leave, and that FMLA leave permits the use of sick leave or annual leave in the employee’s discretion. See generally, 29 U.S.C. §2601, et seq.

            The parties do not dispute the facts that led to this alleged debt. Respondent’s regulations, and applicable provisions of the collective bargaining agreement, are clear that SLDC is available to care for the spouse of an employee, if the spouse suffers from any condition in which Petitioner would be otherwise granted sick leave if he suffered from the same condition. Petitioner’s Arguments, Attachment A (February 18, 2011). Both parties acknowledge that Petitioner was not married to his partner on the date of the birth of his son (Finding 2). Accordingly, Petitioner did not qualify for SLDC at the time he was erroneously granted SLDC in November 2008 to care for his partner and healthy newborn son.[4] Additionally, the parties do not dispute that FMLA provides unpaid leave to Petitioner for the birth of his son. 29 U.S.C. §2612(a)(1)(A). The parties do differ on whether FMLA requires that any FMLA leave be unpaid without an option by the employee to access accrued leave.

            Although closely related, SLDC and FMLA leave are distinctly different benefits under Postal Service leave policy. An employee is entitled to access SLDC to care for an ill family member if the family member’s condition were one that if the employee had the same condition would entitle the employee access to accrued sick leave under existing Postal Service policy. Petitioner’s Arguments, Attachment A (February 18, 2011). Consistent with applicable collective bargaining agreements, SLDC is limited to 80 hours annually. FMLA leave allows an employee to take unpaid leave to address a myriad of specifically enumerated family related issues. See generally, 29 U.S.C. §2601. Under federal law, that leave is limited to twelve weeks annually. Id. While the two policies differ, there exists no basis to conclude that they should be interpreted or applied by Respondent as mutually exclusive.

            FMLA was passed by Congress in 1993 “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 USC §2601(a)(1). The statutory provisions of FMLA applicable to employees of the Postal Service can be located at 29 U.S.C. §2601, et seq. Under FMLA, Congress delegated regulatory authority to the Department of Labor (DOL) for the purposes of implementation of guidelines for employers as defined in the statute.[5] 29 USC §2654. There is no dispute between the parties that the provisions of FMLA and its implementing regulations are applicable to the Postal Service.

            Respondent adopted policies published in the Employee and Labor Relations Manual (ELM) governing the use of leave as well as for implementation of FMLA.[6] Although Petitioner did not originally style his request in November 2008 as FMLA leave, employers are obligated to make additional inquiry if an FMLA type situation arises. Price v. City of Ft. Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997)(notice to employer of a request for covered leave sufficient to invoke requirement for further inquiry by employer to determine FMLA eligibility). It is unclear from the record whether such inquiry was ever made. However, because Petitioner is clearly entitled to use FMLA leave for the birth of his son, whether Petitioner properly framed his original request in this case is irrelevant to this analysis.

            Thus, the only question that remains is whether Petitioner is entitled to use of accrued paid leave for his absence from work due to the birth of his son, consistent with FMLA and Postal Service leave policy.[7] As discussed, Postal Service policy states that Petitioner may not access SLDC to care for an otherwise healthy family member. Petitioner’s Arguments, Attachment A (February 18, 2011). Applying the same policy to FMLA leave as was applied to the denial of SLDC to Petitioner, Respondent states that because Petitioner’ s child was born healthy, there is no basis to access accrued sick leave under Postal Service policy.

            The implementing regulations promulgated by DOL provide that employees may substitute either annual leave or sick leave for unpaid FMLA leave. 29 C.F.R. §825.207(a). However, access to substitute paid leave “is determined by the terms and conditions of the employer's normal leave policy.” Id. Nothing under FMLA, its implementing regulations, or applicable case law, lead me to conclude that the Postal Service policy denying access to accrued sick leave for the birth of a healthy newborn is invalid or unenforceable. Consequently, Petitioner may not use his accrued sick leave for the care of his newborn son concurrent with his FMLA leave in 2008.

            Alternatively, Petitioner argues that he should be permitted to use accrued annual leave retroactively to offset the hours used to care for his newborn son under FMLA in 2008. On the issue of availability of paid leave, the statutory language of FMLA is clear:

            An eligible employee may elect . . . to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), (C), or (E) of subsection (a)(1) of this section for any part of the 12-week period of such leave under such subsection.

            29 U.S.C. §2612

            In this case, Petitioner sought leave under 29 U.S.C. §2612(a)(1)(A), which provides for leave “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter.” Accordingly, under FMLA, Petitioner may, at his election, substitute accrued paid vacation leave for unpaid FMLA leave. 29 C.F.R. §825.207(a).

            On the date of Petitioner’s son’s birth, Petitioner had 96 hours of accrued annual leave (Finding 1). Petitioner argues that had he not been erroneously approved for 80 hours of SLDC at that time, he would have been more judicious in his use of annual leave in the time following his son’s birth. Respondent argues that because Petitioner exhausted his annual leave balance in 2008, following the birth of his son, no accrued leave balance existed in 2008 to apply to the LWOP created by rescission of Petitioner’s approved SLDC.[8] Given Respondent’s admission that its errors led to the original approval of the SLDC and thus created the corresponding overpayment, I do not find Respondent’s argument against retroactive application of currently accrued paid leave as an offset against this debt persuasive.[9]

            To the extent that Petitioner currently has enough accrued annual leave available to offset the conversion of his SLDC to LWOP, Petitioner is entitled to use that accrued annual leave for the period of his FMLA related absence in 2008 to offset the debt sought in this case. Accordingly, Respondent shall convert the 72 hours of sick leave used to 72 hours of annual leave used, and adjust Petitioner’s leave balances accordingly. If Petitioner does not currently have sufficient annual leave to offset the 72 hours for which he was paid, Petitioner may utilize additional annual leave as it is accrued to offset the remaining balance.[10]

CONCLUSION

            The Petition is GRANTED IN PART and DENIED IN PART. Respondent shall credit Petitioner’s sick leave balance for the hours previously debited, and debit Petitioner’s annual leave balance for 72 hours in accordance with the amount of leave Petitioner used in 2008 for the period of time in which he cared for his newborn son under FMLA. Respondent may not collect the monetary debt asserted herein by administrative offset from Petitioner’s salary.

James G. Gilbert
Chief Administrative Law Judge

[1] In response to my Order dated March 10, 2011, the parties had until April 1, 2011, to file a Joint Statement of Facts. On March 29, 2011, Petitioner filed an “Agreed Statement of Facts” however there was apparently no agreement between the parties as to the facts submitted on that date. On April 18, 2011, this office received Respondent’s Agreed Statement of Facts with exhibits. No explanation was offered for this untimely filing. As Respondent failed to submit a statement of facts, agreed or otherwise, in a timely manner, I accept Petitioner’s facts as uncontroverted. In doing so, I note that there is little substantive difference between the “agreed facts” proposed by both parties.

[2] Petitioner’s grievance settled on February 26, 2009, without reaching arbitration.

[3] Although the parties do not contest the 72 hours of sick leave at issue, Petitioner contests Respondent’s calculation of the $1,406.01 monetary debt. For reasons discussed herein, the determination of the accuracy of that calculation is unnecessary to resolve this case. See note 9 infra.

[4] A review of the record suggests that this fact is not in dispute. Postal Service policy defines “spouse” as “husband or wife,” and does not extend the definition to unmarried domestic partners or same-sex partners. See Employee and Labor Relations Manual (ELM) §515.2. FMLA regulations actually broaden the definition to include “common law marriage in states where it is recognized.” 29 C.F.R. §825.122(a). That broader definition of spouse is not applicable to SLDC.

[5] Postal Service employees fall under that portion of the statute governed by DOL regulations. Other federal employees fall under a separate section in which the Office of Personnel Management is the implementing agency.

[6] Congress specifically delegated regulatory authority to the Department of Labor for implementation of the FMLA. 29 USC §2654. Thus, Respondent’s applicable FMLA related ELM provisions must not conflict with or violate DOL regulations which ultimately govern implementation of FMLA to Postal Service employees.

[7] Although FMLA regulations broaden the definition of spouse to include “common law marriage in states where it is recognized” Petitioner did not assert, and no evidence was introduced to suggest, that Petitioner was in a common law marriage during the applicable period. See supra note 4. Thus, Petitioner’s right to access to FMLA leave is due to the birth of his son, not the incapacity of his partner.

[8] I note that Respondent did argue at one stage that FMLA only provides for unpaid leave. In subsequent filings, Respondent appears to narrow its argument to Petitioner’s use of annual leave accrued after 2008 to offset retroactively the debt at issue. As both DOL and Postal Service regulations clearly permit the use of accrued annual leave under FMLA, I address only the remaining issue raised by Respondent pertaining to retroactive application of accrued leave in these circumstances. See ELM §515.42; 29 C.F.R. §825.207.

[9] In many respects, no actual monetary debt exists to the Postal Service. This case is more accurately characterized as shifting types of accrued leave in accordance with existing Postal Service policy as the result of an error by the Postal Service. Requiring Petitioner to “buy back” leave, resulting in a credit balance for sick leave, rather than permit the offset of accrued annual leave, seems to be a distinction without a difference. The remedy applied here achieves the same result as the “buy back” sought by Respondent without the need to reduce the leave balance to a monetary debt.

[10] Respondent apparently maintains that the creation of a “negative leave balance” is not possible. Petitioner supplied evidence in this case to refute that contention. In either event, this is simply an accounting matter that can be addressed through proper maintenance of internal records. To the extent this Decision creates a “negative leave balance,” Respondent shall record such a balance until Petitioner’s accrued leave offsets any remaining negative leave balance.