Claim for Backpay

A request was submitted to GAO concerning an air traffic controller's entitlement to backpay for a 2-month period following her termination of employment with the Federal Aviation Administration (FAA) until her reinstatement. After being hired by the FAA, the employee entered a training program which had to be successfully completed to be retained as an air traffic control specialist. The employee failed a phase of the training program and, consequently, her employment was terminated. Prior to her termination, however, the employee prepared a statement in which she contended that certain collateral incidents had interfered with her ability to participate in the training. Based on this contention, she requested and received reinstatement in the training program. Subsequent to her reinstatement, the employee was informed that she was not entitled to backpay for the period in which she was unemployed. This matter was grieved pursuant to a collective bargaining agreement, but the grievance was denied since the issue concerned the termination of a probationary employee. For the same reason, the Merit Systems Protection Board declined jurisdiction over the appeal. In order to recover backpay, there must be a finding by an appropriate authority that an employee has been affected by an unjustified or unwarranted personnel action. There was no statement in the record by an appropriate authority to that affect. The fact that she was subsequently reinstated did not, in and of itself, constitute a determination that the employee's removal was unjustified and unwarranted. The Director did not make such a finding but found that there were circumstances which would warrant her reinstatement. In the absence of a finding that the termination was unjustified or unwarranted, the employee was not entitled to backpay. Accordingly, her claim for backpay was disallowed.