B-183246, APR 10, 1975

B-183246: Apr 10, 1975

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DENIAL OF EMPLOYEE'S CLAIM FOR REFUND OF MONIES DEDUCTED FROM FINAL SALARY PAYMENT FOR COMPENSATORY TIME TAKEN AFTER EXPIRATION OF TIME PRESCRIBED IS SUSTAINED. EMPLOYEE AND EMPLOYEE'S SUPERIOR ARE CHARGEABLE WITH CONSTRUCTIVE NOTICE OF APPLICABLE LAWS AND REGULATIONS. THIS STATUTE IS IMPLEMENTED BY TITLE 5. SECTION 550.114(C) READS AS FOLLOWS: "(C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT FOR AN EMPLOYEE TO REQUEST OR TAKE COMPENSATORY TIME OFF AND MAY PROVIDE THAT AN EMPLOYEE WHO FAILS TO TAKE COMPENSATORY TIME OFF TO WHICH HE IS ENTITLED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BEFORE THE TIME LIMIT FIXED. SHALL LOSE HIS RIGHT BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS HIS FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL.".

B-183246, APR 10, 1975

DENIAL OF EMPLOYEE'S CLAIM FOR REFUND OF MONIES DEDUCTED FROM FINAL SALARY PAYMENT FOR COMPENSATORY TIME TAKEN AFTER EXPIRATION OF TIME PRESCRIBED IS SUSTAINED. EMPLOYEE AND EMPLOYEE'S SUPERIOR ARE CHARGEABLE WITH CONSTRUCTIVE NOTICE OF APPLICABLE LAWS AND REGULATIONS. FACT THAT SUPERVISOR EXCEEDED HIS AUTHORITY IN ALLOWING EMPLOYEE TO TAKE COMPENSATORY TIME AFTER PRESCRIBED TIME PERIOD HAS EXPIRED DOES NOT CONSTITUTE BASIS FOR RELIEF. SEE COMP. GEN. DECISIONS CITED.

MENA MARANO - CLAIM FOR EXPIRED COMPENSATORY TIME:

THIS MATTER CONCERNS AN APPEAL FROM OUR TRANSPORTATION AND CLAIMS DIVISION'S ACTION DENYING MS. MENA MARANO'S CLAIM FOR REFUND OF $86.22 DEDUCTED FROM HER FINAL SALARY PAYMENT AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, WASHINGTON, D.C. THIS AMOUNT REPRESENTS THE DOLLAR VALUE OF 18 HOURS OF COMPENSATORY TIME USED AFTER THE EXPIRATION LIMIT PRESCRIBED FOR TAKING COMPENSATORY TIME.

TITLE 5, U.S.C. (1970), SECTION 5543, GOVERNING COMPENSATORY TIME OFF, STATES IN PERTINENT PART:

"(A) THE HEAD OF AN AGENCY MAY -

"(1) ON REQUEST OF AN EMPLOYEE, GRANT THE EMPLOYEE COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY INSTEAD OF PAYMENT FOR AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK ***."

THIS STATUTE IS IMPLEMENTED BY TITLE 5, CODE OF FEDERAL REGULATIONS, SECTION 550.114 (1974). SECTION 550.114(C) READS AS FOLLOWS:

"(C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT FOR AN EMPLOYEE TO REQUEST OR TAKE COMPENSATORY TIME OFF AND MAY PROVIDE THAT AN EMPLOYEE WHO FAILS TO TAKE COMPENSATORY TIME OFF TO WHICH HE IS ENTITLED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BEFORE THE TIME LIMIT FIXED, SHALL LOSE HIS RIGHT BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS HIS FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL."

VETERANS ADMINISTRATION REGULATIONS CONCERNING COMPENSATORY TIME ARE FOUND IN VA MANUAL MP-5, PART I, CHAPTER 610. PARAGRAPH 7B(3)(D) (CHANGE 1, OCT. 6, 1970) OF THAT CHAPTER PROVIDES AS FOLLOWS:

"(D) TIME LIMITS ON COMPENSATORY TIME

"1. COMPENSATORY TIME OFF SHOULD BE TAKEN AS SOON AS POSSIBLE AFTER IT IS EARNED, (BUT, EFFECTIVE JANUARY 10, 1971, NOT LATER THAN THE END OF THE 7TH PAY PERIOD FOLLOWING THE PAY PERIOD IN WHICH IT IS EARNED.) COMPENSATORY TIME OFF MAY BE TAKEN ONLY DURING THE EMPLOYEE'S BASIC WORKWEEK.

"2. IF THE COMPENSATORY TIME OFF IS NOT TAKEN WITHIN THE TIME LIMIT PRESCRIBED ABOVE BECAUSE OF THE EXIGENCIES OF THE SERVICE, THE EMPLOYEE WILL BE PAID FOR THE OVERTIME WORK AT THE OVERTIME RATE. IF COMPENSATORY TIME IS NOT TAKEN WITHIN THIS PERIOD BECAUSE OF PERSONAL REASONS NOT DUE TO THE EXIGENCIES OF THE SERVICE, THE RIGHT TO COMPENSATORY TIME OFF OR OVERTIME PAY FOR THE DUTY PERFORMED IS LOST."

IN ADDITION, VETERANS ADMINISTRATION HOSPITAL, WASHINGTON, D.C., STATION MEMORANDUM NO. 135-37, DATED MAY 30, 1972, AND REVISED JULY 9, 1974, ENTITLED "HOURS OF DUTY - GS AND WG EMPLOYEES," WHICH WAS AVAILABLE TO ALL EMPLOYEES STATES SECTION 31:

"(4) TIME LIMITS ON COMPENSATORY TIME:

"(A) COMPENSATORY TIME WILL BE TAKEN AS SOON AS POSSIBLE AFTER IT IS EARNED, BUT NOT LATER THAN THE END OF THE SEVENTH PAY PERIOD FOLLOWING THE PAY PERIOD IN WHICH IT IS EARNED. IF NOT TAKEN BECAUSE OF THE NEEDS OF THE SERVICE, OVERTIME PAY WILL BE MADE. IF NOT TAKEN DUE TO PERSONAL REASONS, THE RIGHT FOR THE TIME IS LOST.

"(B) UNDER NO CIRCUMSTANCES WILL COMPENSATORY TIME OFF BECOME INVOLVED IN INTERSTATION TRANSFERS AT THE GOVERNMENT'S CONVENIENCE.

"(C) COMPENSATORY TIME OFF DUE AN EMPLOYEE WILL BE SETTLED PRIOR TO REDUCTIONS-IN-FORCE TERMINATIONS."

MS. MARANO STATES THAT SHE WAS INFORMED BY HER SUPERVISOR THAT COMPENSATORY TIME COULD BE CARRIED FORWARD IN THE SAME MANNER AS ANNUAL LEAVE. MS. MARANO ALSO STATES THAT SHE NEVER ATTENDED AN ORIENTATION MEETING AND HENCE NEVER RECEIVED A COPY OF STATION MEMORANDUM NO. 135 37.

IN CONSIDERING THE MERITS OF THIS APPEAL, WE NOTE THAT BOTH MS. MARANO AS WELL AS THE SUPERVISOR WHO ADVISED HER WITH RESPECT TO COMPENSATORY TIME ARE CHARGEABLE WITH THE CONSTRUCTIVE NOTICE OF APPROPRIATE REGULATORY PROVISIONS. WHILE IT IS UNFORTUNATE THAT MS. MARANO WAS ALLOWED BY HER SUPERVISOR TO TAKE COMPENSATORY TIME OFF AFTER THE PRESCRIBED TIME FOR TAKING COMPENSATORY TIME HAD EXPIRED, THE FACT THAT AN OFFICIAL OF THE GOVERNMENT EXCEEDED HIS AUTHORITY IN GRANTING A BENEFIT IN EXCESS OF THAT AUTHORIZED BY LAW DOES NOT CONSTITUTE A BASIS FOR THIS OFFICE TO GRANT RELIEF. SEE B-169224, APRIL 8, 1970; B 173927, OCTOBER 27, 1971; AND B- 177641, MARCH 1, 1973.

ACCORDINGLY, THE DENIAL OF MS. MARANO'S CLAIM IS SUSTAINED.