COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Mayli Shing,

Petitioner

v. Docket No. CR-07-454

State Board of Retirement,

Respondent

Appearance for Petitioner:

Mayli Shing

8 Baldwin Street
Winchester, MA 01890

Appearance for Respondent:

Melinda E. Troy, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Respondent properly calculated Petitioner's creditable service in reliance on the data provided by Petitioner's employer. Petitioner failed to show she was erroneously given off-payroll status at certain times. Petitioner cannot receive creditable service for the time periods she received G.L. c. 152, § 35 partial disability workers compensation benefits, but when she worked part-time during those times, she properly received creditable service for those part-time hours. Petitioner cannot receive creditable service for payments received for unused vacation time or for unused sick leave time, because such payments are not regular compensation. Petitioner has under twenty years of creditable service and is under age fifty-five so she is not eligible for a G.L. c. 32, § 10(2) termination allowance or for superannuation retirement.

DECISION

Pursuant to G.L. c. 32, § 16(4), Petitioner, Mayli Shing, is appealing the June 1,2007 decision of Respondent, State Board of Retirement, denying her request to retire pursuant to G.L. c. 32, § 10(2). (Ex. 1) The appeal was timely filed. (Ex. 2) A hearing was held January 21, 2009, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L.
c. 7, § 4H and 801 CMR 1.01, et seq.

Various documents are in evidence. (Exs. 1 - 13). One tape was used. Respondent filed a pre-hearing memorandum. (Ex. A) Petitioner testified. Both parties made arguments on the record. The record was held open until February 26, 2009 for Petitioner to file documentary evidence to refute information provided to Respondent by her employer showing she was off-payroll at certain times. She contended that at all times she had accrued sick or vacation or bereavement time to cover such time periods. (Ex. B) Nothing further was filed.

FINDINGS OF FACT

1. Mayli Shing, d.o.b. 2/16/60, worked full-time for the City of Cambridge, October 24, 1983 to August 6, 1984. She received 9 months and 13 days of creditable service for this employment. (Exs. 3, 7, 8, 12 & 13. Testimony.)

2. Thereafter, Ms. Shing did not hold further public employment until she began working full-time at the Department of Revenue (DOR) on August 30, 1987. (Exs. 5, 7, 8, 12 & 13. Testimony.)

2. Ms. Shing's first child was born May 14, 1991. (Testimony)

3. From July 7 to August 29, 1991, Ms. Shing was on an approved unpaid leave of absence from her DOR job. She received one month of creditable service for this time period. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

4. Ms. Shing returned to work full-time for DOR from August 30, 1991 to July 7, 1997. She received 5 years, 10 months, and 8 days of creditable service for this
time period. (Exs. 5, 7, 8, 12 & 13. Testimony.)

5. Ms. Shing's second child was born May 20, 1997. (Testimony)

6. From July 8 to August 31, 1997, Ms. Shing was on an approved unpaid leave of absence from her DOR job. She received one month of creditable service for this time period. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

7. Ms. Shing returned to work full-time for DOR from September 1, 1997 to October 24, 1998. She received one year, one month, and 24 days of creditable service for this time period. (Exs. 5, 7, 8, 12 & 13. Testimony.)

8. From October 25 to October 31, 1998, Ms. Shing was absent from work on an unpaid period of suspension. She held a civil service position. She did not receive any creditable service for those days. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

9. Ms. Shing worked full-time for DOR from November 1, 1998 to January 11, 1999. She received 2 months and 10 days of creditable service for this time period. (Exs. 5, 7, 8, 12 & 13. Testimony.)

10. From January 12, 1999 to October 9, 1999, Ms. Shing was absent from work receiving full disability workers compensation benefits through G.L. c. 152, § 34. She received 8 months and 28 days of creditable service for this time period. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

11. From October 10, 1999 to January 19, 2002, Ms. Shing received partial disability workers compensation benefits through G.L. c. 152, § 35. She worked 53% of her full-time job while receiving these benefits, and was paid for 20 hours a week during this time period. She received partial creditable service for this time period of one year, 2 months, and 15 days, reflecting her work at 53% of full-time hours. She did not receive any creditable service for the time she was receiving the Section 35 partial workers compensation benefits. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

12. Between January 20 and January 26, 2002, Ms. Shing continued to receive workers compensation benefits through G.L. c. 152, § 35 for partial disability. She did not work during this time period and was off-payroll. She did not receive any creditable service for this time period. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

13. Between January 27 and February 9, 2002, Ms. Shing received partial disability workers compensation benefits pursuant to G.L. c. 152, § 35. She worked 17.5 hours a week or 46% of her full-time hours. She received 6 days of creditable service for this time period, and received no creditable service for the time she received Section 35 workers compensation benefits. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

14. From February 10 to March 30, 2002, Ms. Shing received partial disability workers compensation benefits pursuant to G.L. c. 152, § 35. She did not work during this time period. She received no creditable service for this time period. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

15. From March 31, 2002 to February 22, 2003, Ms. Shing received partial disability workers compensation benefits pursuant to G.L. c. 152, § 35. She worked 20 hours a week or 53% of her full-time hours. She received 5 months and 21 days of creditable service, and received no creditable service for the time she received Section 35 workers compensation benefits. (Exs. 3, 5, 7, 8, 12 & 13. Testimony.)

16. From February 23, 2003 to April 20, 2004, Ms. Shing worked full-time at
her DOR job and received full-time creditable service for this time period. (Exs. 5, 7, 8, 12 & 13. Testimony.)

17. From April 21, 2004 to April 20, 2006, Ms. Shing was on an unpaid administrative leave. (Exs. 5, 7, 8, 12 & 13. Testimony.)

18. At and around 2001, Ms. Shing filed a lawsuit against her employer, DOR, alleging violations of G.L. c. 151B; "that she had been subjected to discrimination and retaliation in not receiving promotions for which she had applied and by other means." By April 2006, the parties had started a jury trial, but the case did not finish. Instead, the parties entered into the Release and Settlement Agreement on April 21, 2006. (Exs. 8 & 11. Testimony.)

19. By the terms of the Settlement Agreement, Ms. Shing continued on administrative leave but received back pay covering the time period she was on this administrative leave, April 21, 2004 to April 20, 2006. She also received regular pay as agreed upon in the Settlement Agreement to cover the time period April 21, 2006 to April 2, 2007. She was also on administrative leave during this time period. She received 4 years, one month, and 11 days of creditable service for the time period, February 23, 2003 to April 2, 2007. (Exs. 5, 7, 8, 11, 12 & 13. Testimony.)

20. On April 2, 2007, pursuant to the Settlement Agreement, Ms. Shing was involuntarily separated from her DOR job. In return for a release of all claims against DOR, by the terms of the Settlement Agreement, Ms. Shing accepted a $300,000 payment from DOR. $72,500 of the $300,000 was for "lost wages," and would be subject to withholding and "retirement contributions." $57,500 of the $300,000 was for her "alleged emotional distress" with no withholdings or deductions to be made from this amount. $100,000 of the $300,000 was to cover her legal expenses in prosecuting this lawsuit. The Agreement specifically addressed the lost wages and the pay she would receive until April 2, 2007. "DOR shall pay Ms. Shing wages of no less than" $70,000 with deductions taken for "ordinary withholding and retirement contributions" for the time period of April 21, 2006 to April 2, 2007 when she would continue to be on an administrative leave. Although on administrative leave, she would be subject to "DOR's Code of Conduct," and could be subject to discipline for violating the Code of Conduct. DOR agreed that "Ms. Shing has the experience, training, and ability to perform the position of an accounts receivable supervisor." By the terms of the Agreement, at the time of her involuntary separation from work, she would "receive payment for all accrued vacation as well as payback for sick leave, as permitted under ordinary Commonwealth of Massachusetts policy." By the terms of the Agreement, Ms. Shing agreed that she would "not make any application in the future for employment to any Massachusetts state agency." (Exs. 8, 9 & 11. Testimony.)

21. The Release and Settlement Agreement led to a "Stipulation of Dismissal With Prejudice" of her lawsuit against DOR. At the same time the Superior Court Judge issued an "Order Regarding Retirement Credit and Contributions" which stated in pertinent part the following:
Plaintiff Mayli Shing shall receive full credit for retirement purposes for
the wages … [of] $72,500 as back pay wages for the period April 21, 2004
to April 20, 2006 … [F]or the period April 21, 2006 until April 2, 2007, Plaintiff's salary shall be $70,000, which is intended as creditable service
under the Commonwealth retirement system ….

(Exs. 8 & 11.)

22. The State Board of Retirement was not involved in the Release and
Settlement Agreement, and did not sign-off on the document. (Exs. 8 & 11.)

23. By letter of February 8, 2007, Ms. Shing wrote to the counsel representing
DOR in the Release and Settlement Agreement, claiming that DOR had taken actions "not in compliance with either the language or the intent of the Agreement." She noted the parties intention "that I would be eligible to retire under … [G.L. c. 32, § 10] … on April 2, 2007," but that by December 11, 2006, the State Board of Retirement had calculated her creditable service to be less than the needed twenty years to retire through that provision of the retirement law, based on what DOR had provided to the State Board of Retirement on her work history. She requested that the date of her involuntary termination "be advanced to the time necessary for me to obtain the required 20 years of creditable service, and that I remain on paid Administrative Leave until then." In this letter Ms. Shing listed the time periods she feels caused this issue:
1. Two maternity leaves in 1991 and 1997;

2. Two weeks' suspension without pay and benefits that was an unjust
punishment placed upon me without due process; and,

3. I was cut off the payroll (Not On Payroll - NOP) from October 28, 2001
through February 1, 2002 while I was on medical leave, even though I
provided all appropriate doctors' notes, and the requests to use my accrued
time were denied. I endured dire financial hardship.

4. Approved partial industrial leave from August 30, 1999 through February 9,
2003.

(Ex. 3)

24. On March 20, 2007, DOR provided the State Board of Retirement with a copy of the Release and Settlement Agreement, Stipulation of Dismissal with Prejudice of the lawsuit, and the Superior Court Judge's Order Regarding Retirement Credit and Contributions. (Ex. 11)

25. On March 27, 2007, Ms. Shing wrote the State Board of Retirement for,

Copies of all documents that were sent by … [DOR] to the State Board of
Retirement related to formulating my total creditable years of state service
for the purpose of retirement … include copies of my pay receipts that cover the dates of service that pertain to my use and receipt of service credit for vacation, personal, compensatory, workers compensation, bereavement, and sick (personal, family, and medical) leave time that chronicle my time at DOR … and all documents or information that show the dates and times for which I did not receive state service credit (e.g., unpaid maternity, suspension, not on payroll (NOP), etc.).

(Ex. 10) Ms. Shing also wanted the statute or case that addresses "when an employee is working part-time and is also receiving workers compensation benefits for the difference between part-time and full-time pay, that employee is not entitled to full-time pay credit for retirement purposes." She also sought "exactly how much total wage credit I am receiving for the period from April 21, 2004 through April 20, 2006 … [and whether] I receive additional creditable time when I am paid for the balance of my unused accrual vacation, personal, and 20% of my sick time upon my separation with DOR on April 2, 2007?" (Ex. 10. Testimony.)

26. Ms. Shing sent a similar letter to DOR dated March 23, 2007. DOR responded by letter of March 30, 2007. DOR explained that the State Board of Retirement and not DOR determines "years of service for purposes of retirement." DOR explained "that pay receipts … are not relied upon … in determining dates of service for purposes of retirement," but DOR attached its "records evidencing your attendance history." DOR further explained "that upon your separation from employment … you will be paid for all accrued and unused vacation and compensatory leave balances in accordance with standard Commonwealth payment practices. You will not be paid for personal days or sick leave balances … only … a 20% payment of sick leave upon retirement." DOR referred Ms. Shing to a website where she could view her pay advices electronically. (Ex. 9)

27. By letter of April 5, 2007, the State Board of Retirement responded to Ms. Shing's March 23, 2007 letter. The Board explained that it does not keep "pay receipts" that would show "receipt of service for vacation, personal, compensatory, workers compensation, bereavement, and sick … leave time." The Board enclosed "a history of your retirement deductions … covering the period September, 1987 to April, 2006." The Board referred to G.L. c. 32, § 14 in regard to her inquiry concerning "creditable service for individuals who are receiving workers compensation benefits." The Board explained that it "does not maintain the official salary information of a member … while he/she is actively employed … [and when a member retires,] an employing agency will provide the Board with confirmed salary information for purposes of calculating a retirement allowance." The Board explained that no additional creditable service is given for "unused … vacation, personal, and 20% of … sick time" upon separation from service. (Ex. 8)

28. By letter of April 17, 2007, the State Board of Retirement provided Ms. Shing, in response to her telephone inquiry of April 13, 2007, with the information the Board sent to DOR "setting forth your total creditable service" as of April 19, 2006. The Board also enclosed Ms. Shing's history of retirement contributions. (Exs. 7 & 13.)

29. The State Board of Retirement did not provide creditable service for the times when Ms. Shing was out for parts of a work-week receiving partial workers compensation benefits pursuant to G.L. c. 152, § 35. (Ex. 12)

30. Ms. Shing filed for retirement on May 4, 2007, seeking an effective date
of retirement of April 2, 2007. (Ex. 3. Testimony.)

31. By letter of May 10, 2007, the State Board of Retirement informed Ms. Shing that the Board had her application to retire and that the Board was addressing it as a request to retire with a termination allowance pursuant to G.L. c. 32, § 10(2). The Board explained that she would need to have "20 years of creditable service." She was informed that the Board would verify whether she had that level of creditable service by securing information from her employing agency. The Board explained that if she lacked 20 years of creditable service that because she is not yet fifty-five years old, she "would not be eligible for superannuation retirement benefits under M.G.L. c. 32, § 5." She was informed that she could contact the Board if she had questions about this information. (Ex. 6)

32. Thereafter, the State Board of Retirement sought Ms. Shing's salary history from DOR to process her retirement application. The DOR initial data was received on May 21, 2007. (Exs. 4 & 5.)

33. At the time she filed for retirement, Ms. Shing's creditable service total was 18 years, 6 months, and 24 days, including the prior City of Cambridge service.
(Ex. 13)

34. By letter of June 1, 2007, the State Board of Retirement issued a decision letter to Ms. Shing informing her that the Board voted to deny her request for a G.L. c. 32, § 10(2) termination allowance. She was provided with information on how to appeal this decision, including a need to appeal in writing "within fifteen days of this letter's date." (Ex. 1)

35. By letter of June 16, 2007, Ms. Shing appealed the State Board of
Retirement's decision. The decision letter was mailed to her on June 2, 2007. She received the letter on or about June 4, 2007. She mailed the letter of appeal on June 18, 2007, and it was received the next day. (Ex. 2)

36. The appeal letter was timely filed. (Exs. 1 & 2.)

Conclusion

TIMELINESS OF APPEAL

G.L. c. 32, § 16(4) calls for an appeal to be filed within fifteen days of its receipt. The record shows Ms. Shing received the decision letter dated June 1, 2007, on or about June 4, 2007. The record shows it was mailed to her on June 2, 2007. This means she had until June 19, 2007 to file her letter of appeal. This is what occurred as she mailed her letter of appeal on June 18, 2007, and it was received the next day.

The State Board of Retirement states in the decision letter that she had to file her appeal within fifteen days of June 1, 2007, the date of the decision letter, but that is not what Section 16(4) states. I conclude that Ms. Shing filed a timely appeal.

SO ORDERED.

MERITS

Ms. Shing was given the opportunity to provide evidence following the hearing to show how DOR had made mistakes in reporting to the State Board of Retirement that she had time periods when she was off-payroll. Ms. Shing stated that on such days she should have been paid because she had the necessary accumulated vacation or sick or personal or bereavement days to use. If she had been paid on those days she would have had retirement contributions taken from the pay received for those days thereby increasing the creditable service she had as of April 2, 2007, the date of her involuntary separation from
her DOR job in fulfillment of the term in the Release and Settlement Agreement. Ms. Shing did not file any further information on these unpaid time periods. She carries the burden of proof to demonstrate that the records kept by DOR on her employment contained such errors. I conclude that her testimony alone is insufficient to overcome the information on her work history provided by DOR to the State Board of Retirement that was used to calculate the amount of creditable service she had as of April 2, 2007. I also conclude that her recollections about time out from work she felt she should have been covered by sick leave or vacation or bereavement leave were not clear and specific. There is insufficient proof to support her claim.

Ms. Shing contends that during the time periods when she was on unpaid maternity leaves that lasted longer than one month, she should have received full creditable service for as long as each one lasted. She questioned whether the time periods listed for her second unpaid leave of absence in particular, involved a time period before it ended when she was taking bereavement time that should have been paid time subject to retirement contributions. She did not provide any information to refute the time periods listed for her leaves of absence produced by DOR for the State Board of Retirement. There is insufficient proof to support altering the DOR listed time periods for these unpaid leaves of absence. G.L. c. 32, § 4(1)(c) allows the local retirement board to give up to a maximum of one month of creditable service for any period of an authorized unpaid leave of absence lasting over one month's time. Ms. Shing was properly given one month of creditable service for each of her two unpaid leaves of absence.

Ms. Shing contends that she should have received full days of creditable service
during each time period when she was receiving partial workers compensation benefits pursuant to G.L. c. 152, § 35. These time periods occurred in 1999, 2002 and 2003. For most of these time periods, she also worked part-time, and received partial creditable service reflecting the actual amounts of time she was working; either 53% or 46% of full-time. (See, 941 CMR 2.03(2)(b), the State Board of Retirement's rule on creditable service for part-time work performed as a member-in-service.) This grant of part-time creditable service was proper. There was one time period in 1999 when she was out from work receiving full disability workers compensation benefits pursuant to G.L. c. 152, § 34. She was granted full-time creditable service for that time period by the State Board of Retirement pursuant to G.L. c. 32, § 14(1)(a).

G.L. c. 32, § 14(1)(a) addresses the kind of workers compensation benefits that permit receipt of creditable service for the time periods when they are received. Receipt of Section 34 benefits is one of these and is specifically listed in Section 14(1)(a). Section 35 is not one of the listed provisions in Section 14(1)(a), and therefore she was not entitled to accrue creditable service for the time she was absent from work receiving those partial disability workers compensation benefits. In Zelesky v. PERAC and Worcester Cty. Retirement System, 30 Mass. App. Ct. 106, 109 (1991), the Appeals Court explained that workers compensation payments are not regular compensation subject to retirement deductions because the benefits are not paid by the employing governmental unit but by an insurer, and workers compensation is not remuneration for work performed. In Hayes v. Newton Retirement Bd., 425 Mass. 468, 472 (1997), the Supreme Judicial Court also clearly explained that workers compensation benefits under G.L. c. 152, § 34 and under any of the other provisions listed in G.L. c. 32, § 14(1)(a) are not regular compensation even though the member can receive creditable service for the time period when such benefits are received. The Court explained Section 14(1)(a) is simply conferring creditable service as a benefit to a qualifying member. G.L. c. 32, § 1 defines regular retirement deductions in pertinent part as: "the amounts withheld from the regular compensation of any member."

The State Board of Retirement properly determined that Ms. Shing is not able to gain further creditable service from the payments she received for unused vacation pay or for unused sick leave time. Such payments are specifically excluded from the definition of regular compensation under G.L .c. 32, § 1 and under PERAC's regulation on regular compensation at 840 CMR 15.03(2)(d).

The record shows Ms. Shing had retirement deductions taken from the back wages she received covering the time period she was on administrative leave up to the time she entered into the Settlement Agreement. She also had retirement deductions taken from the wages she was paid during the time she was on administrative leave once she entered into the Settlement Agreement up to the time she was involuntarily separated from service. She received full-time creditable service for these two time periods, and that was properly granted by the State Board of Retirement. The Board also added Ms. Shing's 9 years and 13 months of creditable service from her prior service with the City of Cambridge in totaling her creditable service to be 18 years, 6 months, and 24 days.

The Board properly performed its calculations to determine that she lacked the required 20 years of creditable service to be eligible for the G.L. c. 32, § 10(2) termination allowance. The Board relied on the latest data it had from DOR from April 17, 2007 in doing its final calculation. In addition, because Ms. Shing is under age fifty-five, she is not eligible for a superannuation retirement.
For these reasons the decision of the State Board of Retirement is affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

\s\ Sarah H. Luick, Esq.
Administrative Magistrate

DATED: June 16, 2009