P.S. Docket Nos. DCA 17-6, DCA 17-7, DCA 17-50


December 27, 2017

In the Matter of the Debt Collection Act Petition

HENRY MENZIE v. UNITED STATES POSTAL SERVICE

P.S. Docket Nos. DCA 17-6, DCA 17-7, DCA 17-50

APPEARANCE FOR PETITIONER:
Jeffrey Morgan
Mail Handlers Local #321

APPEARANCE FOR RESPONDENT:
Patricia Castro
Labor Relations Specialist

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Respondent, United States Postal Service, sought to collect from Petitioner, Henry Menzie, three claims of debt of $3,017.68 (DCA 17-6), $1,176.62 (DCA 17-7), and $252.36 (DCA 17-50) for overpayment of salary and taxes related to the overpayments.  Petitioner filed two Petitions for Hearing on January 11, 2017, and an additional Petition for Hearing on February 24, 2017.  The Petitions were consolidated by my Order.  A hearing on the consolidated Petitions was conducted in Aurora, Colorado.1 The following findings are based upon the record.

FINDINGS OF FACT

  1. Petitioner previously served as a tractor-trailer operator (TTO) but as the result of a required physical was deemed no longer physically capable of remaining in his position (Tr. 116-17; Resp. Exh. 4 at 30).2
  2. After getting notice of his removal from the TTO position, Petitioner was offered a reasonable accommodation to remain within the Postal Service (Tr. 110, 118; Resp. Exh. 4 at 8-9).
  3. The Postal Service offered two different positions as an accommodation, and Petitioner chose the mail handler position (Tr. 101, 118; Resp. Exh. 4 at 8-9).
  4. Petitioner was placed in the mail handler position on May 16, 2015 (Resp. Exh. 1; Pet. Exh. 5 at 6).3
  5. As the result of administrative error, Petitioner was placed in the wrong grade at a Level 4L mail handler position (Tr. 22; Pet. Exh. 5 at 6).
  6. On July 15, 2015, the Postal Service issued a Form 50 effective May 16, 2015, correcting its original error by reducing Petitioner from the Level 4L to a Level 4D mail handler position.  However, this grade reduction was also incorrect. (Resp. Exh. 1).
  7. On March 29, 2016, the Postal Service issued a Form 50 effective May 16, 2015, correcting its second error by reducing Petitioner from the Level 4D to a Level 4B mail handler position (Resp. Exh. 2).
  8. Petitioner remained in the Level 4B mail handler position up to and including the date of the hearing (Tr. 25).4
  9. Overpayments resulting from the above coding errors were separated into two separate debts by calendar year.  The debt of $3,017.68 was for net overpayments between pay period 12/2015 and pay period 27/2015.  (Tr. 61-63; Resp. Exh. 3).
  10. The second debt was for net overpayments between pay period 01/2016 and 06/2016 and amounted to $1,176.62 (Id.).
  11. A third claim of debt in the amount of $252.36 was established in January 2017 purportedly for tax reimbursements due to the Postal Service related to the above debts (Resp. Exh. 5).
  12. The Petitions were timely filed.

DECISION

In a Debt Collection Act case, the agency carries the burden of establishing that a debt exists. Cross v. United States Postal Service, DCA 15-78, 2015 WL 13647652 (September 14, 2015); Bruch v. United States Postal Service, DCA 14-362, 2015 WL 13647636 (June 17, 2015).  The obligation to meet that burden in a salary overpayment case requires the agency to produce sufficient evidence that Petitioner owes the debt, and that the amount the agency seeks to collect is an accurate calculation of the debt alleged.  Price v. United States Postal Service, AO 15-212, 2016 WL 10572233 (I.D. May 17, 2016).  I am satisfied that Respondent has met that initial burden in two of three debts at issue in this consolidated matter.
The Postal Service proved how the overpayments in this case arose, how they were calculated, and why Petitioner owes the sums at issue.  Petitioner raised several issues in defense of these overpayments.  Petitioner argued forcefully that the collective bargaining agreement (CBA) required the Postal Service to act on his previous request for a waiver.  However, the Postal Service’s decision to grant a waiver is entirely discretionary, and we have long held exercise of that discretion is not subject to review in this forum.  Raymond J. Voisine, DCA 95-22, 1995 WL 18241224, at *3 (March 21, 1995)(“I have no authority to determine that a debt owed Respondent should be waived.”); see also, Karen M. Ennis, DCA-33, 1989 WL 1843894 (August 29, 1989).  Likewise, whether or not the Postal Service followed either the CBA or the Employee and Labor Relations Manual (ELM) procedures to consider a waiver is also a discretionary act not subject to review here. 
Next Petitioner argues that he was entitled to protected rate status for two years following his transfer from the TTO position to the mail handler position.  This unfortunate situation arose after Petitioner was deemed no longer qualified to continue in his position as TTO for health related reasons (Finding 1).  The Postal Service offered Petitioner two positions it deemed him eligible to work as a reasonable accommodation (Finding 3).  It appears in retrospect that both positions would result in a significant reduction in Petitioner’s salary.5 Under the Americans with Disabilities Act, an employer is not under any obligation to offer a reasonable accommodation that maintains an employee’s current salary.  Griffin v. United Parcel Service, Inc., 661 F.3d 216, 224 (5th Cir. 2011)(employee “has no right to a promotion, to choose what job to which he will be assigned, or to receive the same compensation as he received previously.”).
Here, Petitioner contends that because his transfer was due to a reasonable accommodation that was not voluntary, the provisions of ELM § 421.511a-f offer him two years of protected rate status.
An individual employee who is assigned to a lower grade position has a protected rate (i.e., continues to be paid the wage he or she received in the previous higher grade position, as detailed in 421.512, below, augmented by any general increases granted (see also 422.113)), for a specified period of 2 calendar years provided all of the following conditions are satisfied:
a.         The employee is serving under a career appointment.
b.         Reduction in salary standing is not disciplinary (for personal cause) or voluntary (at the request of the employee).
c.         The employee served for 2 continuous years immediately preceding the effective date of reduction in a position with a salary standing higher than that to which reduced.
d.         Salary in the higher salary standing was not derived from a temporary appointment or temporary assignment.
e.         Reduction in salary standing is not caused by a reduction in force due to lack of funds imposed on the Postal Service by outside authority or curtailment of work. For this purpose, curtailment of work does not include reduction in revenue unit category of any Post Office or reduction in route mileage on a rural route.
f.          Employee's performance of work was satisfactory at all times during such period of 2 calendar years.
ELM § 421.511a-f (emphasis added).  Specifically, Petitioner’s contention is that the process was not “voluntary” within the meaning of section 421.511b.  He testified that he never requested an accommodation nor did he volunteer for the mail handler position and therefore his acceptance of the mail handler position was not voluntary.  As a result, he argues that he meets all of the conditions under section 421.511 (including of subparagraph (b) above), and should be entitled to two years of protected rate. 
To qualify for the protected rate status of section 421.511b, a reduction in salary cannot be “voluntary (at the request of the employee).”  The parenthetical here is instructive.  When an employee receives a reasonable accommodation under the ADA, it is almost exclusively the result of the employee’s initiating request.6  With this understanding in mind, and giving the language in the parenthetical its plain meaning, I conclude that the more reasonable interpretation is that the agency was not committing to extension of protected rate in situations that are covered by an employee’s request for a reasonable accommodation under the ADA.  This interpretation is further supported with the knowledge that the ADA does not require an employer to offer an employee the same salary he or she previously received.  As a result, I find the fact that the employee in this case did not initiate the reasonable accommodation process of little practical significance.  Petitioner participated in the process, and ultimately accepted the accommodation.  That is sufficient for me to find that he acted in a voluntary manner within the meaning of section 421.511b.7
Petitioner also argues that he was never informed that his salary would decrease if he accepted the mail handler position.  To the contrary, he states that he was told that his salary would remain the same in the accommodated position (Tr. 105).  Even if I accept that as true, it would not change the result in this case.  If Petitioner was not entitled to retain his prior salary, no mistaken promise from another Postal Service employee can grant him salary he is not entitled to receive.  John F. Breslin, DCA 13-357, 2014 WL 12767838 (April 28, 2014)(“employees who erroneously receive a salary overpayment from the Postal Service do not acquire any rights to that money, and it must be repaid—even in a situation such as this one where the Postal Service mistakenly told [the employee] in 2009 that he was entitled to the money.”); see also Voisine, DCA 95-22, 1995 WL 18241224 at *2 (citing DiSilvestro v. United States, 405 F.2d 150, 155 (2d Cir. 1968)).  We have consistently followed this holding.  Margaret L. Smith, AO 11-151, 2012 WL 13034237 (I.D. February 8, 2012); Arnel L. Carter, DCA 05-233, 2006 WL 8429629 (March 6, 2006).
Finally, the third debt at issue in these consolidated matters was for an amount allegedly related to Petitioner’s tax obligations for the debts owed above.  However, the agency presented no testimony to support the invoice or the calculation of the claim of debt.  In fact, the agency’s only witness on this issue admitted he had no knowledge of the debt (Tr. 75-76).  Further, exhibits submitted do not shed sufficient light on this claim to elicit a finding in the agency’s favor by a preponderance of the evidence.  Accordingly, the Postal Service failed to meet its burden on this claim of debt, and Petitioner is entitled to judgment in his favor.8

ORDER

The Petition is GRANTED IN PART and DENIED IN PART.  The Postal Service may collect the debts of $3,017.68 and $1,176.62 by administrative salary offset.
The claim of debt of $252.36 is INVALIDATED.  The Postal Service may not collect this amount by administrative salary offset.

James G. Gilbert
Chief Administrative Law Judge

1 The undersigned Administrative Law Judge presided via video-teleconference from the Judicial Officer Courtroom in Arlington, Virginia.

2 Citations to the transcript are to the amended transcript.

3 Petitioner testified that he started in the mail handler position in April 2015 before receiving a Form 50 (Tr. 79).  However, the Form 50 submitted as evidence establishes May 16, 2015, as the effective date of Petitioner’s appointment to the mail handler position.

4 There was testimony that Petitioner was incorrectly placed into the Level 4B position as well, and should have been placed in a Level 4A position, but any debt or claim for overpayment related to Petitioner’s current Level 4B position is not part of these consolidated Petitions (Tr. 22, 29-30, 37).

5 The decision of the District Reasonable Accommodation Committee (DRAC) regarding what constitutes a reasonable accommodation is not subject to review or reconsideration under the Debt Collection Act.   See, e.g., Lewis T. Amis, DCA 12-163, 2013 WL 12303248 (March 20, 2013)(“If Petitioner was dissatisfied with the decision of the DRAC, this Debt Collection Act Petition is not the forum to resolve that dispute.”). Thus, to the extent Petitioner challenges that the reduction of his compensation as part of his accommodation is unreasonable that challenge belongs with the DRAC and not in this forum.

6 Petitioner’s contention that he did not request an accommodation is unusual.  In most cases, an employee begins the reasonable accommodation process by making a request for a reasonable accommodation to his or her employer.  Following that request, the employer and employee are obligated to participate in an interactive process.  The obligation is a shared responsibility.  Loulseged v. Akzo Nobel, Inc. 178 F.3d 731, 736 (5th Cir. 1999).  As Petitioner is under a statutory obligation to participate it could be argued that the participation is not voluntary.  Yet, the ultimate purpose of the process is to identify an accommodation for the employee, which the Postal Service did, and which Petitioner ultimately accepted.  As noted previously, the statute does not obligate the employer to maintain the employee’s current salary, or to accommodate the preferences of the employee.  Griffin, 661 F.3d at 224.

7 In Snyder v. Dep’t of Veterans Affairs, VA 14-409, 2016 WL 10572257 (February 23, 2016), I found that a “constructive discharge” was an involuntary separation.  Snyder is distinguished from the present case because the Postal Service did not take any action against Petitioner that required him to accept his reasonable accommodation to a downgraded position.  Rather, the Postal Service was simply complying with its statutory obligations under the ADA.

8 Petitioner raised in his case issues pertaining to an offset taken by the Postal Service from his Thrift Savings Plan (TSP) account.  The withdrawals from Petitioner’s TSP were not related to the debts at issue in this Petition, and therefore are not subject to review here (Tr. 48-50).