B-198381, FEB 13, 1981

B-198381: Feb 13, 1981

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DIGEST: EMPLOYEE WAS REASSIGNED TO NEW DUTY STATION BUT LATER RETURNED TO FORMER DUTY STATION AFTER GRIEVANCE EXAMINER CONCLUDED REASSIGNMENT WAS IMPROPER. OVERTIME FOR COMMUTING TO NEW DUTY STATION ARE DENIED. DETERMINATION THAT REASSIGNMENT WAS IMPROPER DOES NOT CONVERT ASSIGNMENT TO TEMPORARY DUTY. OVERTIME FOR TRAVEL DURING THE 17-MONTH PERIOD SHE WAS IMPROPERLY REASSIGNED TO ANOTHER DUTY STATION. FERRELL WAS EMPLOYED IN THE FMHA COUNTY OFFICE IN SANFORD. WHEN SHE WAS DETAILED ON DECEMBER 14. FERRELL'S GRIEVANCE CHALLENGING THIS ACTION WAS DENIED BY FMHA IN APRIL 1978. FERRELL WAS FORMALLY REASSIGNED TO THE ORLANDO OFFICE AND SHE WAS AUTHORIZED TRAVEL FOR HERSELF AND HER FAMILY AND TRANSPORTATION OF HER HOUSEHOLD GOODS.

B-198381, FEB 13, 1981

DIGEST: EMPLOYEE WAS REASSIGNED TO NEW DUTY STATION BUT LATER RETURNED TO FORMER DUTY STATION AFTER GRIEVANCE EXAMINER CONCLUDED REASSIGNMENT WAS IMPROPER. EMPLOYEE'S CLAIMS FOR MILEAGE, PARKING FEES, AND OVERTIME FOR COMMUTING TO NEW DUTY STATION ARE DENIED. DETERMINATION THAT REASSIGNMENT WAS IMPROPER DOES NOT CONVERT ASSIGNMENT TO TEMPORARY DUTY, AND THESE CLAIMS MAY NOT BE PAID FOR COMMUTING TO EMPLOYEE'S OFFICIAL DUTY STATION.

MARIE B. FERRELL - CLAIM FOR TRAVEL EXPENSES AND OVERTIME INCIDENT TO IMPROPER REASSIGNMENT:

THIS DECISION RESPONDS TO THE REQUEST OF JOHN W. ENNEST, ACTING DEPUTY ADMINISTRATOR, FINANCIAL AND ADMINISTRATIVE OPERATIONS, FARMERS HOME ADMINISTRATION (FMHA), DEPARTMENT OF AGRICULTURE, FOR OUR DECISION ON THE CLAIM OF MS. MARIE B. FERRELL, A FMHA EMPLOYEE, FOR MILEAGE, PARKING FEES, AND OVERTIME FOR TRAVEL DURING THE 17-MONTH PERIOD SHE WAS IMPROPERLY REASSIGNED TO ANOTHER DUTY STATION.

MS. FERRELL WAS EMPLOYED IN THE FMHA COUNTY OFFICE IN SANFORD, FLORIDA, WHEN SHE WAS DETAILED ON DECEMBER 14, 1977, TO THE FMHA COUNTY OFFICE IN ORLANDO. MS. FERRELL'S GRIEVANCE CHALLENGING THIS ACTION WAS DENIED BY FMHA IN APRIL 1978, AND SHE APPEALED TO THE DEPARTMENT OF AGRICULTURE.

EFFECTIVE APRIL 16, 1978, MS. FERRELL WAS FORMALLY REASSIGNED TO THE ORLANDO OFFICE AND SHE WAS AUTHORIZED TRAVEL FOR HERSELF AND HER FAMILY AND TRANSPORTATION OF HER HOUSEHOLD GOODS. HOWEVER, WHILE SHE PURSUED HER GRIEVANCE ACTION WITH AGRICULTURE, MS. FERRELL DID NOT MOVE HER FAMILY TO HER NEW DUTY STATION BUT INSTEAD CHOSE TO COMMUTE 25 MILES EACH WAY TO HER NEW STATION. ON MARCH 30, 1979, THE AGRICULTURE GRIEVANCE EXAMINER DETERMINED THAT MS. FERRELL WAS IMPROPERLY REASSIGNED TO ORLANDO WITHOUT BEING GIVEN AN OPPORTUNITY TO CHALLENGE OR REFUTE THE ALLEGATIONS MADE AGAINST HER. THE AGENCY AGREED WITH THE GRIEVANCE EXAMINER'S RECOMMENDATION, CANCELLED THE REASSIGNMENT, AND RETURNED MS. FERRELL TO THE SANFORD OFFICE EFFECTIVE SEPTEMBER 24, 1979.

IT DOES NOT APPEAR THAT MS. FERRELL HAS CLAIMED ANY RELOCATION EXPENSES INCIDENT TO HER TRANSFER TO ORLANDO OR HER RETURN TO THE SANFORD OFFICE. INSTEAD, FOR THE 17-MONTH PERIOD SHE WAS FORMALLY ASSIGNED TO THE ORLANDO OFFICE, MS. FERRELL CLAIMS MILEAGE FOR THE 25 MILE COMMUTE BETWEEN HER RESIDENCE AND THE ORLANDO OFFICE ($2,721.25), PARKING FEES ($189.60), AND OVERTIME FOR HER TRAVEL TIME OF 1-1/2 HOURS PER DAY ($4,114.22).

IN SEVERAL PRIOR DECISIONS OUR OFFICE HAS CONSIDERED WHETHER AN ADMINISTRATIVE DETERMINATION TO RETROACTIVELY RESTORE AN EMPLOYEE TO HIS FORMER POSITION AT HIS OLD DUTY STATION, AFTER A WRONGFUL REASSIGNMENT AND PERMANENT TRANSFER TO A NEW DUTY STATION, WOULD MAKE THE TIME SPENT AT THE NEW DUTY STATION TEMPORARY DUTY. WE HAVE CONSISTENTLY HELD THAT IT DOES NOT. ANTHONY A. ESPOSITO, B-197023, MARCH 14, 1980; WILLIAM H. BUCHENHORST, B-194447, AUGUST 7, 1979; MARIE R. STREETER, B-191056, JUNE 5, 1978; AND JIMMY MORRIS, B-188358, AUGUST 10, 1977. THUS, CLAIMS OF THESE EMPLOYEES FOR TRAVEL EXPENSES OR PER DIEM HAVE BEEN DENIED SINCE THESE EXPENSES MAY BE PAID ONLY WHERE THE EMPLOYEES ARE PERFORMING DUTY AWAY FROM THEIR PERMANENT DUTY STATIONS. SEE ESPOSITO, SUPRA. SINCE ORLANDO WAS MS. FERRELL'S OFFICIAL DUTY STATION DURING THIS 17-MONTH PERIOD, WE FIND NO BASIS FOR PAYMENT OF MILEAGE AND PARKING FEES DURING THIS PERIOD.

WITH REGARD TO MS. FERRELL'S CLAIM FOR OVERTIME WHILE COMMUTING 1 1/2 HOURS EACH DAY TO THE ORLANDO OFFICE, WE HAVE LONG HELD THAT SUCH TIME IS NOT CONSIDERED TO BE "SPENT IN A TRAVEL STATUS" FOR THE PURPOSE OF OVERTIME UNDER 5 U.S.C. SEC. 5542 (1976). SEE 41 COMP.GEN. 82 (1961). SIMILARLY, TIME SPENT COMMUTING TO THE OFFICIAL DUTY STATION IS NOT NORMALLY COMPENSABLE UNDER THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SECS. 201 ET SEQ. SEE PORTER C. MURPHY, 55 COMP.GEN. 1009 (1976).

ACCORDINGLY, WE FIND NO BASIS UPON WHICH TO ALLOW MS. FERRELL'S CLAIMS.