B-182085, DEC 24, 1974

B-182085: Dec 24, 1974

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AGENCY DETERMINATION NOT TO GRANT EMPLOYEE ADVANCE SICK LEAVE AND TO PLACE HIM ON LEAVE WITHOUT PAY FOR ABSENCES FROM WORK AFTER HE APPLIED FOR DISABILITY RETIREMENT IS SUSTAINED SINCE THE DETERMINATION TO GRANT OR REFUSE A REQUEST FOR ADVANCE SICK LEAVE IS EXCLUSIVELY WITHIN THE DISCRETION OF THE AGENCY. 2. CIVIL SERVICE COMMISSION HAS EXCLUSIVE JURISDICTION OVER DISABILITY RETIREMENT MATTERS AND ITS DETERMINATIONS ON SUCH MATTERS ARE NOT SUBJECT TO REVIEW. BAILEY - LWOP - DISABILITY RETIREMENT: THIS ACTION IS A CONSIDERATION OF THE CLAIM OF MR. BAILEY ALSO ALLEGES THAT HIS RETIREMENT WAS FORCED ON HIM BECAUSE HE WOULD NOT CONFORM TO MISMANAGEMENT PRACTICES AT ALL AGENCY LEVELS RATHER THAN BEING ATTRIBUTABLE TO A DISABILITY.

B-182085, DEC 24, 1974

1. AGENCY DETERMINATION NOT TO GRANT EMPLOYEE ADVANCE SICK LEAVE AND TO PLACE HIM ON LEAVE WITHOUT PAY FOR ABSENCES FROM WORK AFTER HE APPLIED FOR DISABILITY RETIREMENT IS SUSTAINED SINCE THE DETERMINATION TO GRANT OR REFUSE A REQUEST FOR ADVANCE SICK LEAVE IS EXCLUSIVELY WITHIN THE DISCRETION OF THE AGENCY. 2. CIVIL SERVICE COMMISSION HAS EXCLUSIVE JURISDICTION OVER DISABILITY RETIREMENT MATTERS AND ITS DETERMINATIONS ON SUCH MATTERS ARE NOT SUBJECT TO REVIEW.

THOMAS W. BAILEY - LWOP - DISABILITY RETIREMENT:

THIS ACTION IS A CONSIDERATION OF THE CLAIM OF MR. THOMAS W. BAILEY THAT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW) FORCED HIM TO TAKE LEAVE WITHOUT PAY (LWOP) FOR HOURS TAKEN INCIDENT TO THE PROCESSING OF HIS APPLICATION FOR DISABILITY RETIREMENT AT THE CIVIL SERVICE COMMISSION. MR. BAILEY ALSO ALLEGES THAT HIS RETIREMENT WAS FORCED ON HIM BECAUSE HE WOULD NOT CONFORM TO MISMANAGEMENT PRACTICES AT ALL AGENCY LEVELS RATHER THAN BEING ATTRIBUTABLE TO A DISABILITY. WITH RESPECT TO THE LATTER CONTENTION, WE MUST POINT OUT THAT THE CIVIL SERVICE COMMISSION HAS STATUTORY AUTHORITY FOR ADMINISTRATION OF THE APPLICABLE RETIREMENT LAW AND ITS DETERMINATIONS CONCERNING DISABILITY ARE FINAL AND CONCLUSIVE AND ARE NOT SUBJECT TO REVIEW. 5 U.S.C. SEC. 8347(C) (1970).

FROM THE RECORD BEFORE US, IT APPEARS THAT MR. BAILEY APPLIED FOR DISABILITY RETIREMENT ON APRIL 10, 1974. ON MAY 9, 1974, HE FILED A GRIEVANCE WITHIN THE AGENCY REQUESTING THAT HE BE GIVEN ADVANCED SICK LEAVE FOR A TOTAL OF 24 HOURS OF LEAVE FOR TIME HE WAS CHARGED EITHER LWOP OR ABSENCE WITHOUT LEAVE DURING THE PERIOD APRIL 11 THROUGH APRIL 16, 1974. DURING THE ORAL PRESENTATION ON THE GRIEVANCE THE REQUEST FOR ADVANCE SICK LEAVE WAS EXPANDED TO INCLUDE 33 HOURS USED BETWEEN MAY 6 AND 17, 1974. THE REQUEST FOR ADVANCE SICK LEAVE WAS DENIED ON AUGUST 7, 1974, BY DECISION OF THE AGENCY ADMINISTRATOR. THE ADMINISTRATIVE REPORT ON MR. BAILEY'S CLAIM IN PERTINENT PART STATES AS FOLLOWS:

"MR. BAILEY'S DISABILITY RETIREMENT WAS BASED ON A COMBINATION OF EMOTIONAL AND PHYSICAL PROBLEMS WHICH RENDERED HIM UNABLE TO ADEQUATELY PERFORM THE DUTIES OF HIS POSITION. THE APPLICATION FOR RETIREMENT WAS INITIATED BY MR. BAILEY.

"MR. BAILEY'S RETIREMENT WAS PRECEDED BY A SINCERE EFFORT OF ABOUT TEN MONTHS DURATION WHICH TIME THE SOCIAL AND REHABILITATION SERVICE WORKED TOWARD HIS REHABILITATION. DURING THIS PERIOD, MR. BAILEY WAS ADVANCED 40 HOURS SICK LEAVE IN OCTOBER 1973, AND WAS AGAIN ADVANCED 40 HOURS SICK LEAVE IN JANUARY 1974. AT THE TIME MR. BAILEY SUBMITTED HIS APPLICATION FOR DISABILITY RETIREMENT IN APRIL 1974, HIS SICK LEAVE WAS IN ARREARS BY 36 HOURS. WHEN HE ASKED FOR ANOTHER ADVANCE OF SICK LEAVE TO COVER THE TIME NEEDED TO PROCESS HIS RETIREMENT APPLICATION AT THE CIVIL SERVICE COMMISSION, HIS REQUEST WAS DENIED ON THE BASIS OF AN HEW POLICY WHICH PROHIBITS AN ADVANCEMENT OF LEAVE WHEN IT IS LIKELY THAT THE EMPLOYEE WILL RETIRE (HEW PERSONNEL GUIDE FOR SUPERVISORS, CHAPTER IV, GUIDE 5, PARAGRAPH 13B). MR. BAILEY'S LEAVE RECORD REFLECTED AN INDEBTEDNESS OF 28 HOURS ADVANCED SICK LEAVE AS OF THE EFFECTIVE DATE OF RETIREMENT, MAY 17, 1974."

IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT THE CHARGING OF LEAVE IS PRIMARILY A MATTER FOR THE ADMINISTRATIVE OFFICE OF THE AGENCY CONCERNED. 39 COMP. GEN. 250, 251 (1959). THUS, WHEN SICK LEAVE IS REFUSED OR AN EMPLOYEE IS PLACED IN ABSENCE-WITHOUT-LEAVE STATUS BY ADMINISTRATIVE ACTION, WE HAVE GENERALLY HELD THAT THIS OFFICE IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE PAYMENT IF THEY HAVE BEEN DENIED ADMINISTRATIVELY. SIMILARLY, THE DETERMINATION TO GRANT A REQUEST FOR AN ADVANCE OF SICK LEAVE OR TO REFUSE SUCH REQUESTS IS ALSO WITHIN THE EXCLUSIVE DISCRETION OF THE ADMINISTRATIVE AGENCY. B 164825, SEPTEMBER 17, 1968. IT IS NOTED, MOREOVER, THAT THE DENIAL IN THIS CASE OF THE REQUEST FOR ADVANCE SICK LEAVE APPEARS TO BE CONSISTENT WITH REASONABLE AGENCY REGULATIONS ON THE MATTER.

ACCORDINGLY, THE AGENCY ACTION IN DENYING MR. BAILEY'S CLAIM IS SUSTAINED.