B-150467, FEB. 28, 1963

B-150467, FEB. 28, 1963

TO MRS. ELVENA FRIZZIOLA:

YOUR LETTER OF DECEMBER 5, 1962, REQUESTS REVIEW OF OUR SETTLEMENT OF DECEMBER 3, 1962, WHICH DISALLOWED YOUR CLAIM FOR ANNUAL AND SICK LEAVE, HOLIDAY PAY, UNIFORM ALLOWANCE, RETIREMENT AND LIFE INSURANCE BENEFITS WHICH ALLEGEDLY BECAME DUE YOU DURING THE PERIOD FROM 1955 TO 1962 WHILE EMPLOYED AS A NURSE AT THE U.S. PUBLIC HEALTH SERVICE HOSPITAL, STATEN ISLAND 4, NEW YORK.

YOUR CONTENTION IS THAT YOU WORKED "A PRE-ARRANGED SCHEDULED TOUR OF DUTY FIXED AT LEAST ONE (1) WEEK IN ADVANCE" AND, THEREFORE, THAT YOU SHOULD RECEIVE THE BENEFITS ACCRUING TO A PART-TIME EMPLOYEE WITH A REGULAR TOUR OF DUTY, INSTEAD OF BEING EXCLUDED FROM SUCH BENEFITS ON THE BASIS OF BEING AN INTERMITTENT EMPLOYEE WITHOUT A REGULAR TOUR OF DUTY.

OUR SETTLEMENT LETTER OF DECEMBER 3, 1962, THIRD PARAGRAPH, REFERRED TO THE REPORT OF THE ADMINISTRATIVE OFFICE DATED JULY 20, 1962, WHICH IN PERTINENT PART IS AS FOLLOWS:

"NURSES WHO ARE GIVEN WAE APPOINTMENTS SPECIFY ON WHAT DAYS AND TOURS THEY WILL BE AVAILABLE FOR DUTY WITH THE STIPULATION THAT THEY ARE NOT BOUND TO PERFORM DUTY ON DAYS SPECIFIED NOR IS THE HOSPITAL BOUND TO UTILIZE THE NURSE'S SERVICES ON ALL DAYS THE NURSE IS AVAILABLE. NURSES WHO ARE AVAILABLE FOR PART-TIME WORK ON A REGULAR BASIS ARE GIVEN PART- TIME APPOINTMENTS IN ACCORDANCE WITH YOUR MEMORANDUM DATED MARCH 13, 1962.

"A ROSTER OF NURSES AVAILABLE FOR DUTY ON A WAE BASIS IS MAINTAINED FROM WHICH WEEKLY SCHEDULES ARE DEVELOPED DEPENDING UPON NURSING REQUIREMENTS. OUR MEMORANDUM DATED AUGUST 30, 1961, TRANSMITTED SCHEDULES SHOWING AVAILABILITY STATEMENTS AND ACTUAL TIME WORKED BY 81 WAE PROFESSIONAL NURSES DURING THE PERIOD MAY 29, 1960, THROUGH JUNE 3, 1961, WHICH INCLUDED SCHEDULES FOR MRS. ELVENA FRIZZIOLA AND MRS. ROSE M. SUMMA. THESE TWO SCHEDULES, UPDATED TO INCLUDE TIME WORKED FROM JANUARY 23, 1957, THROUGH JUNE 23, 1962, ARE ATTACHED. RECORDS PRIOR TO JANUARY 23, 1957, ARE NOT AVAILABLE.

"IT WILL BE NOTED THAT MRS. FRIZZIOLA'S DAYS OF DUTY VARY FROM WEEK TO WEEK AND THAT NO REGULARITY IN ASSIGNMENTS EXISTED. ACTUALLY, THIS EMPLOYEE HAS PERFORMED NO DUTY AT ALL FOR PERIODS OF SEVERAL MONTHS AT A TIME. IN OUR OPINION THERE IS NO BASIS FOR JUSTIFYING THE EMPLOYEE'S CONTENTION THAT SHE PERFORMED DUTY ON A REGULARLY SCHEDULED TOUR OF DUTY.'

THUS THE RECORD DISCLOSES THAT ANY SO-CALLED REGULARITY WHICH MIGHT BE SAID TO HAVE RESULTED FROM YOUR REPETITIOUS DUTY ON CERTAIN CALENDAR DAYS OF SUCCESSIVE WEEKS, WAS SOLELY BECAUSE OF AN ARRANGEMENT YOU MADE TO SUIT YOUR CONVENIENCE, AS AND WHEN YOU WERE AVAILABLE FOR NURSING DUTY ON ANY SUCH DAYS. SUCH A METHOD OF PREARRANGEMENT, IN OUR VIEW, DID NOT CONSTITUTE AN ADMINISTRATIVELY PRESCRIBED REGULAR TOUR OF DUTY IN ADVANCE FOR PURPOSES OF ACCRUING LEAVE--- EITHER AS A REGULAR PART-TIME OR AS A FULL-TIME EMPLOYEE--- UNDER THE LEAVE LAW AND REGULATIONS. SEE 5 U.S.C. 2061/B) (1) (B) AND 5 CFR 30.501. THE TRANSCRIPT SHOWS AT BEST THAT DURING MORE THAN HALF OF THE 7-DAY ADMINISTRATIVE WORKWEEKS YOU SERVED INTERMITTENTLY AN AVERAGE OF APPROXIMATELY 4 DAYS OF EACH SUCH 7-DAY WEEKS, BUT NOT REGULARLY ON THE SAME CALENDAR-WEEK DAYS.

AS TO HOLIDAY PAY, IN THE ABSENCE OF AN ADMINISTRATIVELY PRESCRIBED REGULAR TOUR OF DUTY, DAILY OR WEEKLY, THE PROVISIONS OF 5 U.S.C. 922 DO NOT APPLY TO YOUR SERVICE. SEE 5 U.S.C. 944, AND 5 CFR 25.203, 25.211, 25.212, AND 25.241. SEE ALSO 26 COMP. GEN. 690; 32 ID. 378.

CONCERNING UNIFORM ALLOWANCES, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, GENERAL ADMINISTRATION MANUAL PARAGRAPH 11-10-10A, PROVIDES "EMPLOYEES WORKING A NON-REGULARLY SCHEDULED TOUR OF DUTY SHALL NOT BE PAID UNIFORM ALLOWANCES.'

REGARDING LIFE INSURANCE, THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE ACT OF 1954, 5 U.S.C. 2091, 2100, AUTHORIZES THE CIVIL SERVICE COMMISSION TO ISSUE REGULATIONS GOVERNING EMPLOYEE COVERAGE AND ELIGIBILITY FOR PURPOSES OF THAT ACT, SUCH AS CONTAINED IN 5 CFR 37.2/A) (6) WHICH EXCLUDES "PART- TIME, WHEN-ACTUALLY-EMPLOYED, OR INTERMITTENT EMPLOYEES HAVING NO REGULAR TOUR OF DUTY.'

AS TO RETIREMENT BENEFITS, THE CIVIL SERVICE COMMISSION'S REGULATION 5 CFR 29.2/A) (2) ISSUED UNDER THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2252/E), EXCLUDES PART-TIME, WHEN-ACTUALLY-EMPLOYED, OR INTERMITTENT EMPLOYEES WHO HAVE NO REGULAR TOUR OF DUTY.

THEREFORE, UPON REVIEW, WE MUST CONCLUDE THAT THE PRESENT RECORD FAILS TO ESTABLISH THAT YOU WERE A PART-TIME EMPLOYEE WITH A REGULAR TOUR OF DUTY SO AS TO BE ENTITLED TO THE FOREGOING BENEFITS. THE SETTLEMENT OF DECEMBER 3, 1962, IS SUSTAINED.