B-170411, SEP. 17, 1970

B-170411, SEP. 17, 1970

ANNUAL LEAVE - BACK PAY DECISION TO A FORMER EMPLOYEE OF FHA, ADVISING THAT UPON REVIEW OF PRIOR SETTLEMENT, JUNE 19, 1970, OPENED AS RESULT OF TELEPHONE REQUEST, THE 40 HOURS OF ANNUAL LEAVE, THAT WERE CHARGED TO EMPLOYEE AFTER HIS RESIGNATION, MAY NOW, UNDER THE NEW CIRCUMSTANCES BE CREDITED FOR PAYMENT. OTHER ACTIONS PERTAINING TO THE PRIOR SETTLEMENT ARE SUSTAINED.

TO MR. ROBERT W. HOWLEY:

YOU RECENTLY CONTACTED OUR OFFICE BY TELEPHONE CHALLENGING THE SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 19, 1970, WHICH DISALLOWED YOUR CLAIM COVERING PAYMENT FOR 40 HOURS ANNUAL LEAVE TO WHICH YOU ALLEGE YOU WERE ENTITLED ON NOVEMBER 22, 1967, THE DATE YOU RESIGNED FROM THE FEDERAL HOUSING ADMINISTRATION, DISTRICT OF COLUMBIA INSURING OFFICE. WE REOPENED YOUR CASE FOR FULL CONSIDERATION BASED UPON YOUR TELEPHONE INQUIRY. ALSO, IN A LETTER DATED JUNE 30, 1970, YOU ARE AGAIN MAKING CLAIM FOR BACK PAY AFTER THE DATE OF YOUR RESIGNATION ON NOVEMBER 22, 1967, AND YOU NOW INCLUDE AN ADDITIONAL CLAIM FOR A PERIOD OF LEAVE WITHOUT PAY IMMEDIATELY PRIOR TO NOVEMBER 22, 1967.

THE CLAIM FOR ANNUAL LEAVE WAS DISALLOWED BECAUSE OF A REPORT FROM YOUR FORMER AGENCY TO THE EFFECT THAT YOU WERE ABSENT FROM WORK DURING THE PERIOD JUNE 26 TO 30, 1967, FOR WHICH YOU WERE CHARGED ANNUAL LEAVE. HOWEVER, IT IS STILL YOUR CONTENTION THAT YOU WORKED DURING SUCH PERIOD AND THAT YOU TURNED IN 11 CASES WHICH YOU SAY IS PROOF OF SUCH CONTENTION.

WE HAVE OBTAINED FURTHER INFORMATION WHICH SHOWS THAT YOU TURNED IN TWO CASES ON MONDAY, JUNE 26, SIX CASES ON WEDNESDAY, JUNE 28, AND THREE CASES ON WEDNESDAY, JULY 5. THUS ONLY 8 CASES WERE TURNED IN DURING THE WEEK OF JUNE 26-30, 1967, RATHER THAN ELEVEN AS ALLEGED. THERE IS NOTHING TO REFLECT HOW THE CASES WERE TURNED IN, I.E., PERSONALLY, THROUGH FELLOW WORKERS, BY MAIL OR IN SOME OTHER MANNER. ALTHOUGH STATEMENTS HAVE BEEN SUBMITTED BY RESPONSIBLE AGENCY OFFICIALS THAT TO THE BEST OF THEIR KNOWLEDGE YOU WERE NOT AT WORK DURING THE PERIOD IN QUESTION, IT IS CONCEDED THAT A POSITIVE DETERMINATION OF YOUR ABSENCE FROM DUTY CANNOT BE MADE.

WE HAVE EXAMINED ALL OFFICIAL RECORDS AVAILABLE AND SUCH RECORDS DO NOT PURPORT TO SHOW WHEN THE WORK WAS PERFORMED ON THE EIGHT CASES TURNED IN BY YOU DURING THE WEEK OF JUNE 26-30; NOR DO THE RECORDS OTHERWISE SPECIFICALLY SHOW WHETHER OR NOT YOU ACTUALLY PERFORMED SERVICES DURING THAT PERIOD. IN THAT CONNECTION WE NOTE THAT THE LEAVE WAS CHARGED TO YOU AFTER THE FACT, THAT IS, THE LATTER PART OF JULY 1967. THE FILE CONTAINS AN AUTHORIZATION FOR THE LEAVE SIGNED BY YOU AT THAT TIME WHICH YOU SAY WAS SIGNED AT THE INSISTENCE OF ONE OF YOUR SUPERVISORS. APPARENTLY, YOU MADE NO PROTEST OF THIS ACTION AT THE TIME BECAUSE OF YOUR DESIRE TO BE CHARGED ANNUAL LEAVE AND STILL CONTINUE TO WORK IN ORDER TO REFLECT A HIGHER PRODUCTION AS RELATED TO HOURS OF WORK.

IN VIEW OF THE ABOVE CIRCUMSTANCES WE HAVE DETERMINED TO ALLOW YOUR CLAIM FOR THE FIVE DAYS OF ANNUAL LEAVE AS OF NOVEMBER 22, 1967, THE DATE OF YOUR RESIGNATION. A SETTLEMENT IN YOUR FAVOR WILL BE ISSUED BY OUR CLAIMS DIVISION IN DUE COURSE.

YOUR CLAIM FOR BACK PAY BECAUSE OF AN ALLEGED IMPROPER REMOVAL FROM THE SERVICE ON NOVEMBER 22, 1967, WAS THE SUBJECT OF A LETTER DATED APRIL 22, 1970, FROM THE DIRECTOR OF OUR CLAIMS DIVISION TO YOU, WHICH CITED THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS GOVERNING THE ALLOWANCE OF BACK PAY. YOU WERE ALSO INFORMED THAT IN THE ABSENCE OF THE CORRECTION OF THE PERSONNEL ACTION REMOVING YOU FROM THE SERVICE EITHER BY YOUR FORMER AGENCY, THE CIVIL SERVICE COMMISSION OR THE COURTS, WE WOULD HAVE NO AUTHORITY TO CONSIDER YOUR CLAIM FOR BACK PAY. THE SAME WOULD BE APPLICABLE TO YOUR CLAIM FOR PAY DURING THE PERIOD YOU WERE ABSENT FROM DUTY IN A LEAVE-WITHOUT-PAY STATUS PRIOR TO NOVEMBER 22, 1967.

WE HAVE OBTAINED COPIES OF PAPERS FROM THE CIVIL SERVICE COMMISSION WHICH INDICATE THAT YOUR APPEAL FROM THE RESIGNATION ACTION OF NOVEMBER 22, 1967, WAS FULLY CONSIDERED ON SEVERAL OCCASIONS; ALSO SUCH PAPERS INDICATE THAT YOUR LEAVE WITHOUT PAY PRIOR TO NOVEMBER 22, 1967, WAS REQUESTED BY YOU, AND THAT YOU PREVIOUSLY HAD NOT MADE ANY CLAIM WITH RESPECT THERETO.

YOU HAVE UPON NUMEROUS OCCASIONS REFERRED IN TELEPHONE CONVERSATIONS TO A REPORT FROM A DR. SHAPIRO. WE HAVE NO OTHER INFORMATION ABOUT THIS "DR. SHAPIRO REPORT" AND AS TO WHETHER IT WOULD HAVE ANY BEARING ON YOUR ATTEMPT TO HAVE YOUR CASE RECONSIDERED BY THE CIVIL SERVICE COMMISSION IS NOT FOR US TO DECIDE. NEITHER MAY WE ATTEMPT TO ANSWER THE NUMEROUS QUESTIONS WHICH YOU HAVE PROPOUNDED.

THE PAPERS YOU RECENTLY FORWARDED HERE IN THE FORM OF RECEIPTS FOR PURCHASES OF GASOLINE ARE RETURNED HEREWITH SINCE THEY HAVE NO RELEVANCY TO THE MATTERS HEREIN DISCUSSED.