P.S. Docket No. DCA 14-97


July 9, 2014

In the Matter of the Petition by
GARY DOMINGOS

P.S. Docket No. DCA 14-97

APPEARANCE FOR PETITIONER:
Gary Domingos

APPEARANCE FOR RESPONDENT: 
Vernon Tyler, Jr.
Labor Relations Specialist
United States Postal Service

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Gary Domingos challenges a debt assessment issued by the United States Postal Service, seeking to collect $705.08 for a salary overpayment.  I conducted a hearing on May 22, 2014, and June 5, 2014.1  I rule in favor of Mr. Domingos.

FINDINGS OF FACT

  1. The Postal Service employed Mr. Domingos as a PS-9 maintenance mechanic in Springfield, Massachusetts.  On August 21, 2013, the Postal Service excessed this position and several others.  (Exh. 10; May Tr. 35).
  2. Because Mr. Domingos’ position was excessed, on October 28, 2013, as provided by an applicable collective bargaining agreement, the Postal Service offered him the choice of switching to a different PS-9 position (known as retreat rights), or remaining in his existing job re-classified as a PS-4 labor custodian at a lower salary.  On October 31, 2013, Mr. Domingos relinquished his retreat rights and accepted the PS-4 labor custodian position.  By doing so, Mr. Domingos agreed to receive the lower salary associated with the position downgrade.  The document prepared by the Postal Service, in which Mr. Domingos accepted the downgrade, did not identify an effective date.  (Exh. 6; May Tr. 35, 39-40).
  3. A PS Form 50, Notification of Personnel Action, was processed on December 24, 2013, with an effective date of December 14, 2013 (Dec. 24 Form 50).  The Dec. 24 Form 50 stated that Mr. Domingos was reassigned (May Tr. 27), but the specific position to which he was reassigned was identified only by an unexplained code.  The Dec. 24 Form 50 referenced Mr. Domingos’ position as a PS-4 laborer custodian.  (Exh. 4).  Mr. Domingos received the Dec. 24 Form 50 in a timely manner (May Tr. 41).
  4. The Postal Service’s personnel records included another PS Form 50, which indicated that it was processed on December 10, 2013, with an effective date of November 2, 2013 (Dec. 10 Form 50).  The Dec. 10 Form 50 stated that Mr. Domingos was reassigned to a position described with a different unexplained code from that identified in the Dec. 24 Form 50 referenced in Finding 3.2   The Dec. 10 Form 50 also identified Mr. Domingos’ position as a PS-4 laborer custodian (Exh. 12).
  5. Mr. Domingos did not receive the Dec. 10 Form 50 at that time, and he first became aware of it during the hearing (May Tr. 41; June Tr. 22, 33, 38).  In response to Mr. Domingos’ request for supporting documentation in preparation for the hearing, the Postal Service sent the Dec. 24 Form 50, but did not send him the Dec. 10 Form 50.  The Dec. 10 Form 50 was not offered into the evidentiary record until the hearing.  (May Tr. 28, 41, 44; June Tr. 22). 
  6. Only one position classification change applied to Mr. Domingos during the relevant period.  He has remained in the same job since September 2013 (May Tr. 41-42; June Tr. 25-26, 34-36, 38). 
  7. During pay periods 24 and 25 of 2013, corresponding to November 2-29, 2013,3  Mr. Domingos was paid at a PS-9 level.  During that period, Mr. Domingos was paid $705.08 more than he would have earned at a PS-4 level.  (Exh. 11; May Tr. 15-19, 39; June Tr. 32).  Mr. Domingos received salary at the PS-4 level beginning November 30, 2013 (Exhs. 8-9, 11; May Tr. 22; June Tr. 8).
  8. The elapsed time between acceptance of reduced salaries from PS-9 to PS-4 and the effective date of those actions for three similarly situated employees in Springfield were 28 days, 26 days, and 49 days (June Tr. 26-30; Exhs. D-F).4   If considering the Dec. 10 Form 50, the time lapse between Mr. Domingos’ acceptance of the reduced salary (October 31) and the effective date of that action (November 2) was two days (compare Exh. 12 with Exh. 4).
  9. On January 30, 2014, the Postal Service issued Mr. Domingos a letter of demand seeking to collect a $705.08 debt for salary overpayment in pay periods 24 and 25 of 2013 (Exh. 2).  On February 13, 2014, the Postal Service issued Mr. Domingos a Notice of Involuntary Administrative Salary Offsets for the same amount (Exh. 3).  Mr. Domingos timely filed a Debt Collection Act Petition.

DECISION

To recover, the Postal Service must prove that the salary payments were made, the amount of the payments, and that Mr. Domingos was not entitled to the payments.  See Kathryn L. Schrack, P.S. Docket Nos. DCA 11-52, 11-53, 11-54 (August 26, 2011).  Mr. Domingos was paid at a PS-9 level from November 2 to November 29, 2013, and this level of payment was $705.08 more than what would have been due him at a PS-4 level (Finding 7).  The only contested issue for me to decide is the effective date of the salary reduction.

The Postal Service argues that the salary reduction was effective November 2, 2013, as reflected on the Dec. 10 Form 50.  Mr. Domingos argues that the effective date was December 14, 2013, as reflected on the Dec. 24 Form 50.  Mr. Domingos maintains that he never received (until the hearing) the earlier Form 50.

Based on the evidence in the record before me, I conclude that the Postal Service has not met its burden of proving the earlier effective date for Mr. Domingos’ salary reduction.  The only evidence introduced by the Postal Service supporting a November 2, 2013 effective date is the Dec. 10 Form 50 (Finding 4).  The document by which Mr. Domingos accepted a reduced PS-4 salary did not indicate an effective date (Finding 2).  The Postal Service’s sole witness had no knowledge of the appropriate effective date (May Tr. 19-20, 32).  The Postal Service offered no explanation for the existence of two Forms 50 seemingly for the same personnel action, and it introduced no specific evidence for the appropriate effective date, or how it was derived.  The Postal Service’s proof therefore is inadequate to demonstrate that Mr. Domingos was not entitled to the salary he received in the disputed period.  See John Robert McDonald, P.S. Docket No. DCA 09-528 (March 16, 2010).

In contrast, I found Mr. Domingos’ testimony that he did not receive the Dec. 10 Form 50 at the time it was dated to be credible (Finding 5).  In preparation for the hearing, Mr. Domingos requested that the Postal Service provide the relevant personnel documents.  The Postal Service sent him the Dec. 24 Form 50, but not the Dec. 10 Form 50.  (Finding 5).  Mr. Domingos testified that he timely received the Dec. 24 Form 50 but not the earlier one, and I have credited that testimony (Findings 3, 5).  In addition, a December 10 effective date, as opposed to a November 2 effective date, would be consistent with the time elapsed for processing other postal employee downgrades which were similar to Mr. Domingos’ situation (Finding 8).
 
Because the Postal Service has not proved an earlier effective date for the salary reduction than that indicated on the Dec. 24 Form 50, it has not satisfied its burden of proving a salary overpayment.  See Erma Boyd, P.S. Docket No. DCA 12-146 (August 28, 2013).

I rule in favor of Mr. Domingos.  The Petition is granted, and the Postal Service is prohibited from collecting the assessed debt at issue by administrative salary offset.


Gary E. Shapiro
Administrative Judge

1 References to the transcript for May 22, 2014, are identified as “May Tr.”, and references to the transcript for June 5, 2014, are identified as “June Tr.”.

2 Both position code numbers differed from the code number identified in the October document in which Mr. Domingos accepted the downgrade, referenced in Finding 2.  No evidence in the record explains the position code numbers.

3 I take official notice of the dates corresponding to these pay periods.  See http://about.usps.com/postal-bulletin/2012/pb22349/html/info_002.htm.

4 Similar information for five other employees was not offered into the record.