B-170730, AUG 16, 1971

B-170730, AUG 16, 1971

CIVILIAN EMPLOYEE - LEAVE STATUS - ADMINISTRATIVE FINDINGS DETERMINATIVE SUSTAINING THE DENIAL BY CLAIMS DIVISION OF A CLAIM BY EDWARD J. O'BRIEN FOR SALARY FOR THE PERIOD MARCH 27 THROUGH APRIL 13, 1970. THE CLAIM IS BASED ON THE BELIEF THAT CLAIMANT SHOULD HAVE BEEN ON THE ROLLS OF THE FEDERAL AVIATION ADMINISTRATION IN A SICK LEAVE STATUS RATHER THAN AS ABSENT WITHOUT LEAVE. THE DETERMINATION OF AN EMPLOYEE'S LEAVE STATUS IS A MATTER PRIMARILY WITHIN THE JURISDICTION AND DESCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED. GAO IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY UNLESS IT CAN BE SHOWN THAT THE ACTION WAS ARBITRARY OR CAPRICIOUS.

TO MR. EDWARD J. O'BRIEN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1971, IN WHICH YOU REQUEST RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION OF JANUARY 7, 1971, DISALLOWING YOUR CLAIM FOR SALARY FOR THE PERIOD MARCH 27 THROUGH APRIL 13, 1970. YOUR CLAIM IS BASED ON YOUR BELIEF THAT, DURING THE PERIOD IN QUESTION, YOU SHOULD HAVE BEEN CARRIED ON THE ROLLS OF THE FEDERAL AVIATION ADMINISTRATION (FAA) IN SICK LEAVE STATUS RATHER THAN AS ABSENT WITHOUT LEAVE.

THE RECORD SHOWS THAT YOU WERE ABSENT FROM YOUR POSITION AS AN AIR TRAFFIC CONTROLLER BECAUSE THE PHYSICIAN, DESIGNATED BY THE FAA TO EXAMINE AIR TRAFFIC CONTROLLERS FOR PHYSICAL FITNESS, HAD PRESCRIBED CERTAIN DRUGS WHICH ARE, BY FAA REGULATIONS, DETERMINED TO BE INCAPACITATING FOR TRAFFIC CONTROL DUTY.

OUR CLAIMS DIVISION SETTLEMENT NOTED THAT, ALTHOUGH THE REGULATIONS DO NOT ALLOW PERFORMANCE OF AIR TRAFFIC CONTROL DUTY WHILE BEING TREATED WITH THE DRUGS IN QUESTION, PROVISION IS MADE FOR REASSIGNMENT TO OTHER DUTIES DURING A TEMPORARY PERIOD OF DISABILITY AS A CONTROLLER. YOUR LETTER, SUPPORTED BY AN ENCLOSED DIRECTIVE OF THE WASHINGTON AIR ROUTE TRAFFIC CONTROL CENTER, EXPLAINS YOUR CONTENTION THAT YOU WERE ENTIRELY IN COMPLIANCE WITH THE REGULATIONS SINCE YOU REPORTED YOUR CONDITION TO THE APPROPRIATE ADMINISTRATIVE OFFICIAL WHO FAILED TO SUGGEST THE POSSIBILITY OF REASSIGNMENT TO OTHER DUTIES. IN THAT REGARD, WE HAVE BEEN INFORMALLY ADVISED BY THE FAA THAT, AS A PRACTICAL MATTER, NO ADMINISTRATIVE OR OTHER DUTIES EXISTED AT THAT TIME TO WHICH YOU COULD HAVE BEEN REASSIGNED.

YOUR REQUEST FOR SICK LEAVE WAS DENIED AND YOU WERE PLACED IN AWOL STATUS ADMINISTRATIVELY. FOLLOWING NOTICE OF A PROPOSED SUSPENSION FOR THE SAME NUMBER OF DAYS YOU WERE DETERMINED TO BE AWOL, WHICH YOU WERE GIVEN AN OPPORTUNITY TO ANSWER, THE WASHINGTON AREA OFFICE OF FAA ISSUED A DECISION DATED JUNE 10, 1970, TO SUSPEND YOU, A DECISION WHICH WE UNDERSTAND YOU DID NOT APPEAL. THE DECISION TO SUSPEND WAS BASED UPON A REVIEW BY THE REGIONAL FLIGHT SURGEON OF MEDICAL EVIDENCE YOU SUBMITTED IN SUPPORT OF YOUR APPLICATION FOR SICK LEAVE WHICH RESULTED IN A FINDING THAT THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY ABSENCE IN SICK LEAVE STATUS.

AS INDICATED IN THE SETTLEMENT OF OUR CLAIMS DIVISION THE DETERMINATION OF THE STATUS OF AN EMPLOYEE AS BEING ON SICK LEAVE OR ABSENT WITHOUT LEAVE IS A MATTER PRIMARILY WITHIN THE JURISDICTION AND DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED. WHEN SICK LEAVE IS REFUSED OR AN EMPLOYEE IS PLACED IN ABSENCE-WITHOUT-LEAVE STATUS BY ADMINISTRATIVE ACTION, IT HAS BEEN CONSISTENTLY HELD THAT GENERALLY THIS OFFICE IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY.

WE ARE AWARE OF THE UNPRECEDENTED AND EMERGENT CONDITIONS WHICH CONFRONTED THE FAA DURING THE PERIOD OF YOUR ABSENCE. WE ARE INFORMED THAT BETWEEN MARCH 25, 1970, AND MID-APRIL APPROXIMATELY 3,000 AIR TRAFFIC CONTROLLERS REPORTED THEMSELVES AS DISABLED FOR DUTY, INCREASING THE RATE OF ABSENTEEISM FOR THESE EMPLOYEES FROM A NORMAL RATE OF 4 PERCENT AVERAGE TO RATES UP TO 20 TIMES THE NORMAL RATE. SINCE YOUR ABSENCE COINCIDED WITH THE TIME OF THIS EMERGENCY AND BECAUSE OF OTHER FACTORS PREVIOUSLY MENTIONED, WE DO NOT BELIEVE THE ACTION OF THE AGENCY IN DETERMINING YOUR STATUS TO BE THAT OF ABSENT WITHOUT LEAVE CAN BE FOUND TO BE ARBITRARY AND CAPRICIOUS. RATHER, THE DENIAL OF SICK LEAVE IS SUPPORTED BY THE SUSPENSION ACTION OF THE AGENCY IN YOUR CASE WHICH WAS PREDICATED ON ABSENCE WITHOUT LEAVE DURING THE SAME PERIOD OF TIME FOR WHICH SICK LEAVE IS CLAIMED.

IT IS OUR CONCLUSION THAT THE ACTION OF OUR CLAIMS DIVISION WAS CORRECT AND MUST HEREBY BE AFFIRMED.