B-170566, OCT. 12, 1970

B-170566: Oct 12, 1970

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CIVIL PAY - LEAVE WITHOUT PAY REAFFIRMING DECISION THAT EMPLOYEE IS NOT ENTITLED TO REFUND OF $1.93 CHECKED AGAINST HIS PAY FOR ONE-HALF HOUR CHARGED AS LEAVE WITHOUT PAY. THE FACT THAT AN EMPLOYEE IS AT THE SITE OF WORK (HIS DESK) DOES NOT PREVENT ADMINISTRATIVE OFFICE FROM CHARGING EMPLOYEE WITH LEAVE WITHOUT PAY IF HE UNJUSTIFIABLY REFUSES TO WORK. IS IMMATERIAL WHEN EMPLOYEE DID NOT FOLLOW GUIDELINE OF THE POLICY. THE BULLETIN STATED FURTHER THAT EMPLOYEES WERE WELCOME TO ATTEND A SHOWING OF A FILM LASTING 30 MINUTES WHICH WOULD BE RUN DURING A BRIEF MEMORIAL SERVICE FROM NOON TO 1 P.M. IT WAS UNDERSTOOD THAT THE ONE-HOUR PERIOD INCLUDED THE USUAL LUNCH PERIOD. IT SEEMS THAT YOU WERE ABSENT FOR THE ONE-HOUR PERIOD ON JANUARY 15.

B-170566, OCT. 12, 1970

CIVIL PAY - LEAVE WITHOUT PAY REAFFIRMING DECISION THAT EMPLOYEE IS NOT ENTITLED TO REFUND OF $1.93 CHECKED AGAINST HIS PAY FOR ONE-HALF HOUR CHARGED AS LEAVE WITHOUT PAY. THE FACT THAT AN EMPLOYEE IS AT THE SITE OF WORK (HIS DESK) DOES NOT PREVENT ADMINISTRATIVE OFFICE FROM CHARGING EMPLOYEE WITH LEAVE WITHOUT PAY IF HE UNJUSTIFIABLY REFUSES TO WORK. THAT SITUATION LEADING TO SUCH REFUSAL AROSE OUT OF A STAFF BULLETIN GRANTING A LIBERAL LEAVE POLICY FOR EMPLOYEES WISHING TO PARTICIPATE IN ACTIVITIES SCHEDULED IN MEMORIAL TO THE LATE REVEREND MARTIN LUTHER KING, JR., IS IMMATERIAL WHEN EMPLOYEE DID NOT FOLLOW GUIDELINE OF THE POLICY.

TO MR. MAX BANDER:

YOUR LETTER OF JULY 17, 1970, REQUESTS RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON JUNE 18, 1970, IN DISALLOWING YOUR CLAIM FOR REFUND OF $1.93 CHECKED AGAINST YOUR PAY AS AN EMPLOYEE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FOR ONE-HALF HOUR CHARGED AS LEAVE WITHOUT PAY ON JANUARY 15, 1970.

ON JANUARY 14, 1970, THE DEPARTMENT ISSUED A STAFF BULLETIN, ANNOUNCING A LIBERAL LEAVE POLICY TO THOSE EMPLOYEES WISHING TO PARTICIPATE IN ACTIVITIES SCHEDULED IN MEMORIAL TO THE LATE REVEREND MARTIN LUTHER KING, JR., ON THE OCCASION OF HIS BIRTHDAY THE NEXT DAY. THE BULLETIN STATED FURTHER THAT EMPLOYEES WERE WELCOME TO ATTEND A SHOWING OF A FILM LASTING 30 MINUTES WHICH WOULD BE RUN DURING A BRIEF MEMORIAL SERVICE FROM NOON TO 1 P.M. ON JANUARY 15. IT WAS UNDERSTOOD THAT THE ONE-HOUR PERIOD INCLUDED THE USUAL LUNCH PERIOD.

IT SEEMS THAT YOU WERE ABSENT FOR THE ONE-HOUR PERIOD ON JANUARY 15. UPON RETURNING TO YOUR DESK, YOU SPENT AN ADDITIONAL 30 MINUTES ON YOUR LUNCH PERIOD DECLINING TO PERFORM WORK DIRECTED BY YOUR SUPERVISOR. AS A RESULT, YOU WERE REQUESTED TO SIGN A LEAVE CARD PLACING YOU ON ANNUAL LEAVE FOR ONE HOUR, WHICH YOU REFUSED. THEREUPON, YOU WERE CHARGED WITH BEING ABSENT FROM DUTY WITHOUT PERMISSION FOR A PERIOD OF ONE-HALF HOUR.

IN A LETTER DATED FEBRUARY 17, 1970, SUBMITTING YOUR CLAIM, YOU ADMITTED THAT THE ONE-HOUR PERIOD MEMORIAL SERVICE INCLUDED A LUNCH PERIOD. HOWEVER, YOU CONTENDED THAT YOU WERE ADVISED BY A DEPARTMENT OFFICIAL THAT THE TIME SPENT AT THE MEETING WAS "OFFICIAL LEAVE." YOU STATED FURTHER THAT YOU DID RETURN TO YOUR DESK WITHIN THE HOUR BUT THAT YOUR SUPERVISOR DIRECTED THAT YOU BE CHARGED ONE-HALF HOUR ABSENCE WITHOUT LEAVE BECAUSE YOU WERE NOT ENGAGED IN PRODUCTIVE WORK DURING THAT PERIOD. YOU STATED FURTHER THAT YOU WERE OFFERED THE OPTION OF BEING CHARGED ONE HOUR ANNUAL LEAVE BUT REFUSED IT ALTHOUGH YOU HAD SUFFICIENT ANNUAL LEAVE CREDIT.

YOU CONTENDED FURTHER THAT SUBCHAPTER 12, CHAPTER 630-27 OF THE FEDERAL PERSONNEL MANUAL DEFINES LEAVE WITHOUT PAY AND ABSENCE WITHOUT LEAVE AS AN ACTUAL ABSENCE FROM ONE'S DESK AND BUILDING, AND DISTINGUISHED BY WHETHER AN EMPLOYEE RECEIVES ADVANCE AUTHORIZATION. YOU CITED 16 COMP. GEN. 807 (1937) AND 23 COMP. GEN. 960 (1944), WHEREIN THE EMPLOYEES INVOLVED WERE AWAY FROM THEIR DESK AND BUILDING, IN SUPPORT OF YOUR CONTENTION. YOU CONTENDED FURTHER THAT OTHERWISE JUSTIFIABLE PROCEDURE IN DIRECTING ABSENCE WITHOUT LEAVE WOULD HAVE TO BE IN THE FORM OF ADVERSE ACTION OR FURLOUGH WITHOUT PAY, WHICH UNDER CHAPTER 752-11 OF THE MANUAL WOULD REQUIRE ADVANCE WRITTEN NOTICE BY THE AGENCY, STATING REASONS, SPECIFICALLY AND IN DETAIL OF THE PROPOSED ACTION AND PERMITTING REASONABLE TIME FOR AN EMPLOYEE TO FILE A WRITTEN ANSWER.

BY SETTLEMENT DATED JUNE 18, 1970, YOUR CLAIM WAS DISALLOWED FOR THE REASONS THEREIN STATED. IN YOUR LETTER OF JULY 17, 1970, YOU STATE THE MAIN POINT WHICH WAS NOT CONSIDERED IN THE SETTLEMENT WAS WHETHER AN AGENCY HAD THE LEGAL RIGHT TO PLACE AN EMPLOYEE IN A LEAVE-WITHOUT-PAY STATUS WHEN HE WAS AT HIS DESK DURING THAT PERIOD, EVEN THOUGH HE MAY NOT HAVE BEEN ENGAGED IN PRODUCTIVE WORK. YOU, THEREFORE, REQUEST THE SETTLEMENT BE REVIEWED.

PARAGRAPHS 12-1, CHAPTER 630 OF THE FEDERAL PERSONNEL MANUAL (FPM) AND S12-1, BOOK 630, FPM SUPPLEMENT 990-2, DO MAKE A DISTINCTION BETWEEN "ABSENCE WITHOUT LEAVE" AND "LEAVE WITHOUT PAY." BOTH DEFINE LEAVE WITHOUT PAY AS A TEMPORARY NONPAY STATUS AND ABSENCE FROM DUTY, GRANTED UPON THE EMPLOYEE'S REQUEST. THIS COVERS ONLY THOSE HOURS WHICH AN EMPLOYEE WOULD OTHERWISE WORK OR FOR WHICH HE WOULD BE PAID. BOTH PARAGRAPHS STATE FURTHER THAT THE PERMISSIVE NATURE OF LEAVE WITHOUT PAY DISTINGUISHES IT FROM ABSENCE WITHOUT LEAVE, WHICH IS A NONPAY STATUS RESULTING FROM AN AGENCY DETERMINATION THAT IT WILL NOT GRANT ANY TYPE OF LEAVE (INCLUDING LEAVE WITHOUT PAY) FOR A PERIOD OF ABSENCE FOR WHICH THE EMPLOYEE DID NOT OBTAIN ADVANCE AUTHORIZATION OR FOR WHICH HIS REQUEST FOR LEAVE ON THE BASIS OF ALLEGED SICKNESS HAS BEEN DENIED. PARAGRAPHS 1-6, CHAPTER 630, FPM AND S1-6, FPM SUPPLEMENT 990-2, DEFINE "ABSENCE WITHOUT LEAVE" AS AN ABSENCE FROM DUTY WHICH IS NOT AUTHORIZED OR APPROVED OR FOR WHICH A LEAVE REQUEST HAS BEEN DENIED. THEY PROVIDE FURTHER THAT DISCIPLINARY ACTION MAY BE TAKEN WHEN CONSIDERED APPROPRIATE. NONE OF THESE REGULATIONS PROVIDE THAT AN ACTUAL ABSENCE FROM ONE'S DESK AND/OR BUILDING WAS ONE OF THE REQUISITES FOR "ABSENCE WITHOUT LEAVE" OR "LEAVE WITHOUT PAY" STATUS. THE FACT THAT 16 COMP. GEN 807 AND 23 COMP. GEN. 960 CITED BY YOU MAY HAVE PERTAINED TO SITUATIONS WHEREIN THE LEAVE WAS TAKEN AWAY FROM THE PLACES OF EMPLOYMENT WAS NOT MATERIAL IN THE DETERMINATIONS MADE IN THOSE DECISIONS.

WE HAVE HELD THAT LEGALLY AN ADMINISTRATIVE OFFICE MAY CHARGE AN EMPLOYEE WITH LEAVE WITHOUT PAY FOR PERIODS DURING WHICH NO OFFICIAL DUTY IS PERFORMED. AN EMPLOYEE WHO UNJUSTIFIABLY REFUSES TO WORK OR PERFORM HIS DUTY DURING AN ORDINARY WORKDAY IS NOT ENTITLED TO HIS REGULAR COMPENSATION FOR THAT PERIOD. THE FACT THAT THE EMPLOYEE IS AT THE WORK SITE WHEN THE REFUSAL OCCURS DOES NOT APPEAR MATERIAL. THEREFORE, THE DEDUCTION OF THE TIME COVERED BY THE REFUSAL TO WORK (BY DESIGNATING IT AS LEAVE WITHOUT PAY) IS NOT IMPROPER. COMPARE 44 COMP. GEN. 274 (1964); B- 118417, AUGUST 26, 1969 (COPY ENCLOSED).

WE FIND NO PROPER BASIS FOR HOLDING THAT YOUR ADMINISTRATIVE OFFICE ACTED OUTSIDE THE LIMITS OF ITS DISCRETIONARY AUTHORITY IN THE MATTER. ALSO, IT APPEARS THAT NO DISCIPLINARY ACTION WAS TAKEN AND, THEREFORE, THE PROCEDURE OUTLINED IN CHAPTER 752, FPM, WAS NOT FOR APPLICATION. THE ACTION TAKEN IN OUR SETTLEMENT OF JUNE 18, 1970, WAS PROPER AND IS SUSTAINED.