B-133693, DEC. 12, 1957

B-133693: Dec 12, 1957

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WAS FORWARDED TO OUR OFFICE ON AUGUST 22 FOR CONSIDERATION BY G. - THAT YOU WERE NOT INCAPACITATED FOR THE PERFORMANCE OF YOUR DUTIES BY REASON OF PREGNANCY. WHICH READS AS FOLLOWS: "I HAVE ADVISED MRS. I FEEL THIS IS IN THE BEST INTERESTS OF MY PATIENT SINCE SHE MUST TRAVEL 60 MILES DAILY TO GET TO AND FROM WORK. WEST WAS REQUIRED TO TRAVEL 60 MILES DAILY WAS THE MAJOR REASON THAT HER PHYSICIAN ADVISED HER TO QUIT WORK FIVE MONTHS BEFORE THE EXPECTED DATE OF DELIVERY RATHER THAN HER INCAPACITY TO PERFORM THE DUTIES OF HER POSITION.'. IS AS FOLLOWS: "SICK LEAVE SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY * * * PREGNANCY AND CONFINEMENT * * THE RECORD FURTHER SHOWS THAT IT WAS OFFICIALLY AGREED.

B-133693, DEC. 12, 1957

TO MRS. BETTY J. WEST:

YOUR LETTER OF AUGUST 8, 1957, CONCERNING YOUR ENTITLEMENT TO MATERNITY SICK LEAVE UPON YOUR RESIGNATION, WAS FORWARDED TO OUR OFFICE ON AUGUST 22 FOR CONSIDERATION BY G. N. CORKERY, CIVILIAN PERSONNEL OFFICER, AIR FORCE FINANCE CENTER, DENVER, COLORADO, AS YOU REQUESTED.

IN VIEW OF THE DIFFERENCE OF OFFICIAL OPINION WHICH THE PAPERS FURNISHED INDICATED EXISTED AT THE AIR FORCE FINANCE CENTER, WE REQUESTED THE DEPARTMENT OF THE AIR FORCE TO CLARIFY THE MATTER. THE REPLY TO OUR INQUIRY SHOWS THAT PRIOR TO YOUR RESIGNATION, THE AIR FORCE MEDICAL OFFICER, EVEN THOUGH HE DID NOT EXAMINE YOU, DETERMINED- - AND ACCORDING TO THE INFORMATION FROM THE CENTER, HE HAS THE RESPONSIBILITY TO DO SO--- THAT YOU WERE NOT INCAPACITATED FOR THE PERFORMANCE OF YOUR DUTIES BY REASON OF PREGNANCY. THE RECORDS SHOW THAT HE MADE SUCH DETERMINATION AFTER DISCUSSING THE MATTER WITH YOUR DOCTOR, A DR. NUTZMAN, MEDICAL OFFICER, TENTH CIVIL SERVICE REGIONAL, AND CONSIDERING THE STATEMENT CONTAINED IN YOUR DOCTOR'S LETTER OF JUNE 21, 1957, WHICH READS AS FOLLOWS:

"I HAVE ADVISED MRS. BETTY WEST TO CEASE WORK BY THE END OF JUNE. I FEEL THIS IS IN THE BEST INTERESTS OF MY PATIENT SINCE SHE MUST TRAVEL 60 MILES DAILY TO GET TO AND FROM WORK. THIS COMBINED WITH A NATURAL TENDENCY TO BE NERVOUS, WOULD DEFINITELY BE DELETERIOUS TO HER HEALTH AND WELL BEING.'

THE ADMINISTRATIVE REPORT TO US SAYS,"IT APPEARS THAT THE FACT THAT MRS. WEST WAS REQUIRED TO TRAVEL 60 MILES DAILY WAS THE MAJOR REASON THAT HER PHYSICIAN ADVISED HER TO QUIT WORK FIVE MONTHS BEFORE THE EXPECTED DATE OF DELIVERY RATHER THAN HER INCAPACITY TO PERFORM THE DUTIES OF HER POSITION.'

SECTION 30.401, IN PERTINENT PART, IS AS FOLLOWS:

"SICK LEAVE SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY * * * PREGNANCY AND CONFINEMENT * *

THE RECORD FURTHER SHOWS THAT IT WAS OFFICIALLY AGREED, BASED UPON THE MEDICAL OFFICER'S DETERMINATION, BEFORE YOU RESIGNED, BY THE OFFICIALS CHARGED WITH THE ADMINISTRATION OF THE LEAVE POLICY AT THE CENTER, THAT YOU COULD NOT BE GRANTED YOUR SICK LEAVE BEFORE RESIGNATION UNDER THE FOREGOING SECTION. IN THAT REGARD, IT IS PERTINENT TO NOTE THAT PREGNANCY IS NOT IPSO FACTO EVIDENCE OF INCAPACITY, AND THAT THE MATTER OF GRANTING SICK LEAVE IS PRIMARILY ONE WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE. THEREFORE, NO BASIS EXISTS UPON THE PRESENT RECORD FOR OUR OFFICE TO AUTHORIZE PAYMENT TO YOU OF ANY PART OF THE SICK LEAVE NOT ADMINISTRATIVELY GRANTED BEFORE SEPARATION.