B-173426, AUG 27, 1971

B-173426, AUG 27, 1971

CIVILIAN EMPLOYEE - WRONGFUL DISCHARGE - ENTITLEMENT TO BACK PAY DECISION CONCERNING PAYMENT OF BACK PAY TO MISS RITA DE FILIPPO, EMPLOYEE OF THE DEPARTMENT OF THE ARMY, WHO WAS WRONGFULLY REMOVED FROM SERVICE. ABSENT A SUBMISSION BY CLAIMANT OF A STATEMENT OF EARNINGS, UPON THE BASIS OF WHICH A DETERMINATION OF THE AMOUNT ATTRIBUTABLE TO THE EXPANSION OF HER CONTINUED PART-TIME EMPLOYMENT MAY BE MADE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

TO MR. R. E. LAGO:

THIS REFERS TO YOUR LETTER OF MAY 19, 1971, REFERENCE AMXNP-CP, BY WHICH YOU HAVE REQUESTED OUR ADVANCE DECISION WHETHER A VOUCHER IN FAVOR OF MISS RITA DE FILIPPO, FOR BACK PAY DURING A PERIOD OF SEPARATION FROM THE SERVICE, MAY PROPERLY BE CERTIFIED FOR PAYMENT.

THE RECORD INDICATES THAT MISS DE FILIPPO WAS SEPARATED FROM FEDERAL EMPLOYMENT ON JANUARY 23, 1970, "FOR FAILURE TO DEMONSTRATE DURING A PROBATION PERIOD THE CHARACTER TRAITS AND SATISFACTORY PERFORMANCE FOR RETENTION IN THE FEDERAL SERVICE." ON APPEAL HER REMOVAL ACTION WAS CANCELED BUT A SUSPENSION OF ONE DAY WAS IMPOSED. SINCE MISS DE FILIPPO WAS RESTORED TO THE POSITION OF SUPPLY CLERK, C-2005-5, CONTROL SECTION REQUISITION PROCESSING BRANCH, SUPPLY DIVISION, U.S. ARMY LOGISTIC CONTROL OFFICE - PACIFIC, SHE IS ENTITLED TO BACK PAY (WITH THE EXCEPTION OF THE ONE-DAY SUSPENSION) IN ACCORDANCE WITH THE PROVISIONS OF TITLE 5 OF THE U.S.C. SECTION 5596.

THE RECORD INDICATES THAT PRIOR TO HER REMOVAL MISS DE FILIPPO HAD AUGMENTED THE INCOME WHICH SHE RECEIVED FROM THE DEPARTMENT OF THE ARMY BY TEMPORARY EMPLOYMENT THROUGH A NUMBER OF SECRETARIAL AGENCIES WHICH SHE PERFORMED OUTSIDE OF HER NORMAL TOUR OF DUTY AND ON HER OFFICIAL DAYS OFF. THE LETTER OF AUGUST 2, 1971, WHICH WE RECEIVED FROM HER ATTORNEY, MR. WEINBERG, A COPY OF WHICH WE NOTE WAS SENT TO YOUR OFFICE, FURTHER EXPLAINS THE NATURE OF THIS EMPLOYMENT:

"THIS IS MISS DEFILIPPO'S SITUATION. PRIOR TO HER UNJUSTIFIED SEPARATION, SHE HAD BEEN WORKING ON A PART-TIME TEMPORARY BASIS FOR VARIOUS SECRETARIAL AGENCIES. SHE WAS AVAILABLE FOR AND DID WORK ON A PART-TIME TEMPORARY BASIS FOR THESE VARIOUS AGENCIES WHEN AND AS NEEDED.

MR. WEINBERG EXPLAINS FURTHER THAT AFTER HER SEPARATION MISS DE FILIPPO CONTINUED TO WORK AS SHE HAD BEFORE, TAKING WORK WHERE AND AS IT WAS AVAILABLE.

FEDERAL PERSONNEL MANUAL, BOOK 550, SUBCHAPTER 8-5E, PROVIDES WITH RESPECT TO AMOUNTS EARNED FROM OUTSIDE SOURCES BY AN EMPLOYEE DURING A PERIOD OF UNWARRANTED OR UNJUSTIFIED SEPARATION AS FOLLOWS:

"E. DEDUCTIONS. THE AGENCY SHALL DEDUCT THE AMOUNTS EARNED BY THE EMPLOYEE FROM OTHER EMPLOYMENT DURING THE PERIOD COVERED BY THE CORRECTED PERSONNEL ACTION, BUT SHALL INCLUDE AS OTHER EMPLOYMENT ONLY THAT EMPLOYMENT ENGAGED IN BY THE EMPLOYEE TO TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. FOR EXAMPLE, WHEN AN EMPLOYEE HAD OUTSIDE EMPLOYMENT BEFORE HIS GOVERNMENT SEPARATION (SUCH AS EVENING WORK AS A CAB DRIVER), THE AMOUNTS EARNED FROM THE CONTINUATION OF THAT EVENING WORK AFTER SEPARATION ARE NOT DEDUCTIBLE. BUT ANY DAY-TIME EARNINGS FROM CAB DRIVING OR ANY OTHER EMPLOYMENT ENGAGED IN TO TAKE THE PLACE OF THE GOVERNMENT EMPLOYMENT ARE DEDUCTIBLE."

FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2 BOOK 550, SUBCHAPTER 8, AT SUBPARAGRAPH F, FURTHER EXPLAINS THE REQUIREMENT OF THE ABOVE REGULATION AS FOLLOWS:

"F. AMOUNT OF ENTITLEMENT. WHEN AN EMPLOYEE HAS BEEN SEPARATED FROM HIS POSITION BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH IS CORRECTED, THE AMOUNT OF HIS ENTITLEMENT IS THE DIFFERENCE BETWEEN THE AMOUNT HIS GOVERNMENT INCOME SHOULD HAVE BEEN AND THE AMOUNT WHICH HE ACTUALLY EARNED IN AN EMPLOYMENT OBTAINED TO TAKE THE PLACE OF HIS GOVERNMENT EMPLOYMENT. IF THE EMPLOYEE HAD BEEN DEMOTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH IS CORRECTED, THE AMOUNT OF HIS ENTITLEMENT IS THE DIFFERENCE BETWEEN THE AMOUNT HIS INCOME SHOULD HAVE BEEN IN THE PROPER GRADE AND THE AMOUNT OF HIS INCOME IN THE LOWER GRADE. IF THE EMPLOYEE WERE ALREADY WORKING IN A PART-TIME JOB AT THE TIME OF HIS REMOVAL, SUSPENSION, OR FURLOUGH FROM HIS GOVERNMENT EMPLOYMENT AS A RESULT OF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE PART-TIME JOB IS NOT OTHER EMPLOYMENT WITHIN THE MEANING OF SECTION 5596 OF TITLE 5, U.S.C. BECAUSE IT DOES NOT TAKE THE PLACE OF THE GOVERNMENT EMPLOYMENT. IF THE EMPLOYEE WERE ABLE TO EXPAND HIS PART-TIME JOB TO A FULL-TIME JOB, OR WERE TO TAKE A SECOND PART-TIME JOB, AS A SUBSTITUTE FOR GOVERNMENT EMPLOYMENT, ONLY THOSE HOURS WORKED ON THE FULL-TIME JOB IN EXCESS OF THE AGGREGATE OF THE HOURS WORKED ON THE PART-TIME JOB, OR ONLY THE HOURS WORKED ON THE SECOND PART-TIME JOB, AS THE CASE MAY BE, ARE CONSIDERED AS OTHER EMPLOYMENT IN PLACE OF GOVERNMENT EMPLOYMENT. IN OTHER WORDS, THE ONLY EARNINGS FROM OTHER EMPLOYMENT THAT NEED NOT BE DEDUCTED FROM BACK PAY ARE EARNINGS FROM OUTSIDE EMPLOYMENT THE EMPLOYEE ALREADY HAD BEFORE THE UNJUSTIFIED SUSPENSION OR SEPARATION. (SEE COMPTROLLER GENERAL DECISION B-148637, DATED JANUARY 29, 1968.) AN AGENCY SHOULD OBTAIN A STATEMENT OR AFFIDAVIT FROM THE EMPLOYEE COVERING HIS OUTSIDE EARNINGS."

SEE IN CONNECTION WITH THESE REGULATIONS JACKSON V UNITED STATES, 121 CT. CL. 405 (1952) AND COPY OF OUR DECISION B-148637, JANUARY 29, 1968, WHICH IS ENCLOSED.

IN LINE WITH THE ABOVE, ABSENT A SUBMISSION BY MISS DE FILIPPO OF A STATEMENT OF EARNINGS UPON THE BASIS OF WHICH THE NECESSARY DETERMINATION OF THE AMOUNT ATTRIBUTABLE TO EXPANSION OF HER CONTINUED PART-TIME EMPLOYMENT MAY BE MADE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT. ADD THAT IN SITUATIONS SUCH AS MISS DE FILIPPO'S WHERE THE PART-TIME EMPLOYMENT IS ON AN "AS AVAILABLE" BASIS, IT WOULD BE APPROPRIATE TO ASCERTAIN THE EMPLOYEE'S AVERAGE MONTHLY EARNINGS ATTRIBUTABLE TO THE PART -TIME EMPLOYMENT PRIOR TO THE SEPARATION AND DEDUCT FROM BACK PAY ONLY THE AMOUNT BY WHICH THE EMPLOYEE'S MONTHLY EARNINGS FROM THAT CONTINUED EMPLOYMENT SUBSEQUENT TO SEPARATION EXCEED THE FORMER FIGURE.

WE ARE UNABLE TO DETERMINE FROM THE RECORD THE EXACT NATURE OR TENURE OF MISS DE FILIPPO'S ASSOCIATION WITH STAFF BUILDERS. INASMUCH AS IT APPEARS THAT STAFF BUILDERS IS A SECRETARIAL REFERRAL AGENCY AND THAT SHE ACCEPTED EMPLOYMENT THROUGH THEM ON AN "AS AVAILABLE" BASIS AS SHE HAD THROUGH OTHER SECRETARIAL AGENCIES WHICH SIMILARLY PROVIDED A REFERRAL FUNCTION, WE WOULD HAVE NO OBJECTION TO HER EMPLOYMENT THROUGH THEM BEING CONSIDERED AS A CONTINUATION OF HER PREVIOUS PART-TIME EMPLOYMENT AND HER EARNINGS THEREFROM TREATED AS INDICATED ABOVE.