October 9, 2009

In the Matter of the Petition by

ALBERT LONG

P.S. Docket No. DCA 09-202

APPEARANCE FOR PETITIONER:

Albert Long

APPEARANCE FOR RESPONDENT:

Paul Ricucci

Labor Relations Specialist

United States Postal Service

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Petitioner, Albert Long, filed a Petition for Hearing under the Debt Collection Act of 1982 on June 2, 2009. Respondent, United States Postal Service, sought to collect from Petitioner a debt in the amount of $497.22 based upon a payment of sick leave that was later converted by Respondent to leave without pay. A hearing was held in Raleigh, North Carolina on September 9, 2009.[1] The record in this matter was closed on September 21, 2009.[2] The following findings are based upon the record.

FINDINGS OF FACT

1. Petitioner was a part-time flexible clerk at the Henderson, North Carolina Post Office at all relevant times discussed herein (Respondent’s Exhibit 3; Tr., p. 43).[3]

2. On October 4, 2007, Petitioner called to the post office to inform the office that he would be out on sick leave for the next three days (Respondent’s Exhibit 2; Tr., pp. 11, 40, 52).

3. Petitioner returned to work on or about October 7, 2007 (Tr., p. 40).

4. On October 11, 2007, based upon a suspicion that Petitioner had engaged in sick leave abuse, Petitioner’s Supervisor informed Petitioner that he was required to provide medical documentation for his earlier use of sick leave (Tr., pp. 13-15).

5. Sometime after the request, Petitioner submitted a personal note explaining his absence (Petitioner’s Exhibit 2).

6. Respondent determined that Petitioner’s note was insufficient documentation to support his use of sick leave and converted the sick leave to leave without pay (Tr., p. 15).

7. A Notice of Involuntary Administrative Salary Offsets was issued to Petitioner on May 8, 2009, seeking collection of $497.22 (Petitioner’s Exhibit 1).

8. The Debt Collection Act Petition was timely filed (Order dated June 17, 2009).

DECISION

In a Debt Collection Act case, Respondent carries the burden of establishing that a debt exists. Debbie Eccles, P.S. Docket No. DCA 99-148 (August 26, 1999). Respondent seeks to establish that there exists a debt as the result of an overpayment of wages based upon Respondent’s decision to convert Petitioner’s use of sick leave during a three day period in 2007 to leave without pay. The issue in this case involves conflicting interpretations of §513.361 of the Employee and Labor Relations Manual (ELM), and the implementation of sick leave policy at the Henderson, North Carolina postal facility.

Section 513.36 of the ELM, “Sick Leave Documentation Requirements,” provides:

513.361 Three Days or Less

For periods of absence of 3 days or less, supervisors may accept the employee’s statement explaining the absence. Medical documentation or other acceptable evidence of incapacity for work … is required only when the employee is on restricted sick leave … or when the supervisor deems documentation desirable for the protection of the interests of the Postal Service.

Respondent argues that under ELM §513.361, a supervisor may require the submission of medical documentation for any use of sick leave, including use of sick leave for three days or less, “when the supervisor deems documentation desirable for the protection of the interests of the Postal Service.” Petitioner argues that the requirement should not apply unless the employee was first
placed on restricted sick leave under ELM §513.39.[4]

Petitioner’s Supervisor testified that Petitioner had an ongoing attendance issue, and that based on Petitioner’s history, he suspected sick leave abuse. As a result, when Petitioner returned to work, his Supervisor requested medical documentation for his leave under §513.361. Regardless whether the Supervisor’s use of ELM §513.361 in this matter may have been justified based upon his earlier observations, the decision to wait until Petitioner returned from leave to implement ELM §513.361 is problematic.

Implicit in the use of ELM §513.361 is the requirement that the request for documentation be reasonable in order to permit the employee to justify the use of sick leave under the circumstances. See Stewart Rubin, P.S. Docket No. DCA 03-125 (June 6, 2003)(discretion of supervisor under §513.361 “is not unlimited” and “supervisor may not exercise that discretion unreasonably.”) When an employee is absent for a short period, in this case three days or less, there are any number of temporary illnesses or injuries that may justify the use of sick leave. However, after that employee returns to work, it may not be feasible to obtain medical documentation if the condition that justified the use of sick leave at the time did not require a doctor’s care.[5]

The Supervisor testified that he had ample suspicion prior to the dates in question that Petitioner might engage in sick leave abuse. Based on that suspicion, and short of placing Petitioner on restricted sick leave, Petitioner’s Supervisor had a number of options, many of which are identified in ELM §513.39(a)–(e). See supra note 4. Petitioner’s Supervisor opted for none of these alternatives.

Instead, the Supervisor took no action either prior to or during Petitioner’s absence based upon his earlier suspicions. The Supervisor only made a demand for medical documentation after Petitioner returned to work.[6] From a practical standpoint, Petitioner could not get medical documentation for an illness from which he had already recovered and for which he had not received medical attention.[7] In this instance, the request for medical documentation after Petitioner’s return to work was not a reasonable exercise of the Supervisor’s discretion under §513.361.

As the failure of Petitioner to provide medical documentation satisfactory to his Supervisor was the sole basis for Respondent’s decision to convert Petitioner’s sick leave to leave without pay, I find that Respondent has failed to meet its burden of proof on the existence of the debt.[8]

CONCLUSION

The Petition is allowed. Respondent may not collect $497.22 from Petitioner’s salary.

James G. Gilbert

Chief Administrative Law Judge

[1] The undersigned Administrative Law Judge presided via speaker telephone from the Judicial Officer Courtroom in Arlington, Virginia.

[2] Petitioner and Respondent were permitted time to submit additional documentation pertaining to certain union agreements relating to requirements for documentation for sick leave absences of three days or less. Both parties submitted additional materials that were accepted into the record.

[3] Citations to the hearing transcript and page number appear as “Tr., p.__.”

[4] ELM §513.391 provides as follows:

“Supervisors or installation heads who have evidence indicating that an employee is abusing sick leave privileges may place the employee on the restricted sick leave list. In addition, employees may be placed on the restricted sick leave list after their sick leave use has been reviewed on an individual basis and the following actions have been taken:

a. Establishment of an absence file.

b. Review of the absence file by the immediate supervisor and higher levels of management.

c. Review of the absences during the past quarter of LWOP and sick leave used by employees. (No minimum sick leave balance is established below which the employee’s sick leave record is automatically considered unsatisfactory.)

d. Supervisor’s discussion of absence record with the employee.

e. Review of the subsequent quarterly absences. If the absence logs indicate no improvement, the supervisor is to discuss the matter with the employee to include advice that if there is no improvement during the next quarter, the employee will be placed on restricted sick leave.”

[5] There was no direct testimony on the nature of Petitioner’s illness. Petitioner’s Exhibit 2 only states that he “had a medical injury” that prevented him going to work.

[6] The Supervisor also testified that he knew immediately upon learning of Petitioner’s call that he would require medical documentation (Tr., p. 51). Thus there appears to be no valid reason why the Supervisor waited until Petitioner’s return to inform Petitioner that he was exercising his discretion under ELM §513.361. In this case, that unexplained delay prejudiced Petitioner’s ability to obtain appropriate medical documentation to support his use of sick leave.

[7] While it is equally true that no medical documentation could be provided for a feigned illness, there is no evidence in the record that Petitioner’s use of sick leave was based upon any such fraudulent behavior other than the Supervisor’s suspicions based upon prior observations of Petitioner’s attendance.

[8] Respondent also argued that Petitioner had failed to follow appropriate procedures for his request for sick leave under §513.36 of the ELM. In response, Petitioner presented several witnesses who credibly testified that the procedure requiring approval of sick leave by supervisors was routinely ignored by supervisors at this location throughout the time in question (Tr., pp. 56-57, 68-69). Because Respondent routinely waived the requirements of this section, it cannot now seek to revive those requirements in this proceeding to justify the debt.