December 17, 2013

In the Matter of the Petitions by

RICHARD M. SMITH

P.S. Docket Nos. DCA 13-208 and DCA 13-209

APPEARANCE FOR PETITIONER:
Michael Stichler

APPEARANCE FOR RESPONDENT:  
James L. Sykes

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Respondent, United States Postal Service, sought to collect from Petitioner, Richard M. Smith, two debts totaling $30,707.31 based on an overpayment of wages.  Petitioner filed timely Petitions challenging the debt assessments.  These Petitions are decided on the written record.

FINDINGS OF FACT

1.   Petitioner worked for the Postal Service for all time periods pertinent to this litigation (Respondent Exhs. 5 and 6). 
2.  In addition to working for the Postal Service, Petitioner served as a member of the United States Air Force Reserve.  Petitioner was called to active duty twice: from September 12, 2001 to May 8, 2003, and from October 9, 2003 to December 19, 2006 (Petition Attachment DD Form 214; Respondent Exh. 3).
3.  Petitioner was injured while on active duty on February 3, 2003.  Two routine investigations conducted by the Air Force determined that the injuries were military service related (Respondent Exh. 8 at 3-12; Petitioner Exhs. 9, 11, and 14).
4.  Petitioner went off of active duty on May 8, 2003 and returned to work with the Postal Service.  Petitioner continued to receive medical treatment from military physicians while he worked for the Postal Service.  (Petitioner Exhs. 11 and 13).
5.  Petitioner was brought back to active duty on October 9, 2003, so that his injuries could be treated in a military hospital.  He then underwent surgery on November 19, 2003, and February 13, 2004.  (Petitioner Exhs. 3, 9, 11, 12, 13, and 14).

DCA No. 13-208 -- $11,539.53

6.  Respondent seeks to collect $11,539.53 for payments made by Respondent to Petitioner for sick leave from October 11, 2003, through January 16, 2004, a period during which Petitioner was on active duty (Respondent Exh. 4).  Petitioner submitted sick leave requests for this period which Respondent approved (Respondent Exhs. 5, 6, and 7; Petitioner Exhs. 4, 5, and 7).
7.  Petitioner was excused by his military physicians from regular military duties starting on October 6, 2003 because of his injuries (Petitioner Exhs. 3 and 17B ; Respondent Exhs. 7 at 1, 3-4 and 13).

DCA No. 13-209 -- $19,167.78

8.  Respondent also seeks to collect $19,167.78 for salary paid to Petitioner for an intermittent period of time between January 17, 2004 and October 14, 2005, during which time Petitioner was on active duty.   Respondent assessed a debt for 864 work hours and 16 hours of holiday leave that was paid to Petitioner.  (Respondent Exhs. 1, 6, 7, and 10). 
9.  Petitioner was entitled to 480 hours of paid military leave payable by the Postal Service over these four years calculated at a rate of 120 hours per year.  See Employee Labor Relations Manual (ELM) § 517.41(a).  The record does not indicate that Petitioner was credited with military leave during fiscal years 2003, 2004, 2005, and 2006 (Respondent Exhs. 6 and 10 at 38-62; see also, Petitioner Letter dated October 12, 2013 (“military leave wasn’t paid in 2003 and 2004”); Petition).

Financial Hardship

10.  The total of the two debts alleged by Respondent is $30,707.31.  Respondent proposes an administrative offset of 30% ($723.84) per pay period until the two debts are paid.  (Respondent Exh. 1).  
11.  Payment of even half that amount, $361.92 per pay period, would cause a severe financial hardship because of continuing medical treatment with uncovered expenses, mortgage payment, car payment, and household bills (Petitioner Exh. 17A; Respondent Exh. 11 at 17-18).
12.  Respondent issued Notices of Involuntary Administrative Offset and Petitioner filed the timely Petitions which are the subject of this proceeding.

DECISION

The Postal Service allows employees to be absent for “duty ordered by the National Guard or Reserve.”  See ELM § 517.11.  Employees are entitled to paid military leave in addition to military pay for such absences.  Paid military leave is an “authorized absence from postal duties for hours the employee would have worked during his or her regular schedule, without the loss of pay, time, or performance rating. . . .”  ELM § 517.12.  Paid military leave is limited to fifteen calendar days (120 hours) each fiscal year.  ELM § 517.41(a).
Based on these provisions in the ELM, Petitioner was eligible to be paid by both the military and the Postal Service for the same 120 hours per year.   The ELM also provides that “[a]n employee may carryover up to 1 year’s allotted but unused (not to exceed 15 days [i.e., 120 hours]) military leave from one fiscal year to the next.”  Id. 

Once a Postal Service employee exceeds the fifteen days (120 hours) of paid military leave in a fiscal year, the Postal Service grants an employee a choice.

Employees who volunteer or are ordered for a period of military training or for a period of active military duty beyond the general military leave allowance may use annual leave or LWOP [leave without pay], at their option.  Sick leave can be used only if the employee is hospitalized, confined to quarters as directed by competent military medical authorities, or on convalescent leave due to military service.

ELM § 517.542.

The Postal Service seeks to collect a total of $30,707.31.  The Postal Service has broken this amount into two debts.  The first assessed debt of $11,539.53 relates to a period of time when Petitioner submitted sick leave forms to the Postal Service, the leave was approved, and then paid by the Postal Service.  The second assessed debt for $19,167.78 relates to a period of time when Mr. Smith did not submit sick leave forms, but believes that he is entitled to be paid by the Postal Service while serving in the military.

The Postal Service brings this collection action almost ten years after the alleged debts began to accrue.  The Debt Collection Act does not have a statute of limitations limiting the collection period.  See 31 U.S.C. § 3716(e); Merritt W. Foster III, P.S. Docket No. DCA 07-119 (May 27, 2009).

DCA No. 13-208 -- $11,539.53

To recover a salary overpayment, Respondent must prove:  (1) that the payments were made, (2) the amount of the payments, and (3) that the employee was not entitled to the payments.  See Kathryn L. Schrack, P.S. Docket Nos. DCA 11-52, DCA 11-53 and DCA 11-54 (August 26, 2011).  The parties do not contest that (1) Petitioner was paid for sick leave and (2) the $11,539.53 amount.  The parties disagree on the third point:  whether Petitioner was entitled to the payments.  Respondent argues that Petitioner owes $11,539.53 because Petitioner has not shown that he was entitled to be paid for sick leave while he was also serving in the military (i.e., that Petitioner has not met the requirements of ELM § 517.542).

The record includes a few of Petitioner’s Postal Service sick leave forms from approximately ten years ago.  While the record does not include all of the sick leave forms, the parties agree that Respondent approved and made payment on all of them. Respondent, however, now wants to discount the contemporaneous actions and have Petitioner justify that he did not abuse sick leave. 

Respondent waited ten years to assess the debt and argues that Petitioner should lose because his inability to produce supporting records may be held against him.  However, the Administrative Support Manual states that leave forms need only be preserved for three years.  See USPS Administrative Support Manual § 896.33 (PS 3971 Request for or Notification of Absence – 3 years).  With the passage of almost ten years, the incomplete record before me, and the lack of explanation for the delay by Respondent, I am unwilling to construe the absence of documents against Petitioner.  See generally, Lane & Bodley Co. v. Locke, 150 U.S. 193, 201 (1893)(courts of equity will not assist one who has slept on his rights); A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1028-29 (Fed. Cir. 1992)(en banc)(litigation will be decided on evidence that is reasonably available and a party should not be prejudiced by undue delay).

Based on the approval of sick leave almost ten years ago by Respondent, the medical records (including the signed military physicians’ notes), and Respondent’s failure to show that use of sick leave was improper, I find in Petitioner’s favor on DCA No. 13-208.  Respondent may not collect the $11,539.53 through involuntary administrative offset.

DCA No. 13-209 -- $19,167.78

Respondent argues that Petitioner is not entitled to compensation from the Postal Service in addition to his salary from the Air Force for the pay periods at issue in 2004 and 2005 and is seeking reimbursement of $19,167.78 for 864 work hours and 16 hours of holiday leave (i.e., 880 hours).  Petitioner is entitled to fifteen days (120 hours) of paid military leave per fiscal year.  See ELM § 517.41(a).  Respondent did not prove that it paid Petitioner for military leave for the time at issue.  Accordingly, I credit Petitioner with 480 hours of paid military leave for fiscal years 2003, 2004, 2005, and 2006.    Applying credits for 480 hours of military leave reduces the 880 hours to 400 hours.  The Postal Service may collect for the overpayment of 400 hours for a total of $8,712.62.  

Respondent sought to collect $361.92 per pay period for this portion of the assessed debt.  Our Rules of Practice provide that an alternate repayment schedule may be ordered if an employee shows that repayment at the requested rate would result in a severe financial hardship.  39 C.F.R. § 961.4(8); see also, Margaret Sage, P.S. Docket No. DCA 10-184 (December 21, 2010).  Petitioner has met this burden, and Respondent does not oppose an alternative payment schedule.  Accordingly, Respondent may collect $150 per pay period until the debt of $8,712 is recovered. 

CONCLUSION

The Petition docketed as P.S. Docket No. DCA 13-208 for $11,539.53 is granted.  Respondent may not collect this amount from Petitioner.

The Petition docketed as P.S. Docket No. DCA 13-209 for $19,167.78 is granted in part and denied in part.  Respondent may collect from Petitioner $8,712.62 at a rate of $150 per pay period until the debt is paid.

Peter F. Pontzer
Administrative Judge

[1] The record includes a computer printout of the pay stubs showing the use of sick leave and payment by Respondent.  The record includes only a few of the signed leave forms (PS Form 3971 Request for or Notification of Absence).

[2] Petitioner submitted two documents identified as Exhibit 17.  Petitioner’s letter dated August 4, 2013 is identified as Petitioner Exhibit 17A.  The Physical Profile form dated February 2, 2004 is identified as Petitioner Exhibit 17B. 

[3] Petitioner also argues that he was improperly charged for enrollment in the Federal Employee Health Benefit plan (FEHB).  The FEHB charges do not relate to the two debts and, therefore, are not currently before me.

[4] The pay period calendar follows the calendar year.  The Postal Service also follows a fiscal year which starts on October 1^st of each calendar year.  The second alleged debt was accrued during fiscal years 2004, 2005, and 2006.

[5] The record does not show that Petitioner requested sick leave from the Postal Service for the three weeks starting on February 13, 2004 (Respondent Exh. 5).  This period corresponds with the time period following Petitioner’s second surgery when he was on convalescent leave ordered by his military physician (Petitioner Exhs. 17B and 18).  Because Petitioner did not submit sick leave for these three weeks, sick leave does not reduce the second debt.

[6] The 30% would continue for thirty-two pay periods until the $11,539.53 debt is paid and then drop to 15% for another twenty pay periods until the $19,167.78 debt is paid.

[7]A similar policy provides other executive branch employees with fifteen days of paid military leave.  See 5 U.S.C. § 6323.

[8] This situation is akin to a Postal Service employee working a second job while on annual leave.  The difference is that both pay checks (one from the Postal Service and one from the Department of Defense) come from the Federal government.

[9] 5 C.F.R. § 353.208 which applies to other Executive Branch employees provides that an employee performing service with the uniformed services must be permitted to use annual leave or sick leave, if, appropriate, during such military service. 

[10] The assessed debt relates to calendar years 2004 and 2005.  Military leave may be carried into the next fiscal year.  ELM § 517.12.  Therefore, military leave earned in fiscal year 2003 may be used in calendar year 2004.  Calendar year 2005 includes parts of fiscal years 2005 and 2006.  Therefore, military leave earned in fiscal years 2005 and 2006 may be used in calendar year 2005.

[12] $19,167.78 X 400/880 = $8,712.62