B-199114, APR 28, 1981

B-199114: Apr 28, 1981

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AGENCY'S DECISION TO TERMINATE ADVANCE SICK LEAVE AND TO PLACE EMPLOYEE ON LEAVE WITHOUT PAY FOR ABSENCES FROM WORK AFTER EMPLOYEE APPLIED FOR DISABILITY RETIREMENT WILL NOT BE DISTURBED. CLAIM IS DENIED. WAS ADVANCED 30 DAYS OF SICK LEAVE AT THE DIRECTION OF FAA'S SAFETY DIVISION CHIEF ON JULY 29. IT WAS THEN BELIEVED THAT MR. THAT AFTER HIS SICK LEAVE ADVANCE WAS GRANTED IT WAS ARBITRARILY TERMINATED PRIOR TO HIS USING ALL OF HIS ADVANCE. HE FEELS THAT HE IS ENTITLED TO SOME 200 HOURS OF THE SICK LEAVE ORIGINALLY ADVANCED BUT SUBSEQUENTLY TERMINATED. WHETHER OR NOT HIS STATEMENT IS ACCURATE IS IRRELEVANT TO THE ISSUE OF HIS ENTITLEMENT TO 200 HOURS OF SICK LEAVE AND WE FIND NO BASIS TO PURSUE THAT MATTER.

B-199114, APR 28, 1981

DIGEST: EMPLOYEE CLAIMS BACK PAY FOR PERIOD BEFORE DISABILITY RETIREMENT WHEN AGENCY TERMINATED ADVANCE SICK LEAVE AND PLACED EMPLOYEE ON LEAVE WITHOUT PAY PENDING RETIREMENT. ADVANCE SICK LEAVE MAY BE GRANTED AT THE DISCRETION OF EMPLOYING AGENCY. HENCE, AGENCY'S DECISION TO TERMINATE ADVANCE SICK LEAVE AND TO PLACE EMPLOYEE ON LEAVE WITHOUT PAY FOR ABSENCES FROM WORK AFTER EMPLOYEE APPLIED FOR DISABILITY RETIREMENT WILL NOT BE DISTURBED. CLAIM IS DENIED.

HERBERT A. SWEENEY - ADVANCE SICK LEAVE:

MR. HERBERT A. SWEENEY, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), HAS REQUESTED OUR REVIEW OF OUR CLAIMS GROUP'S DENIAL OF HIS CLAIM FOR 200 HOURS OF BACK PAY (SETTLEMENT NO. Z 1811133).

MR. SWEENEY, WHO WORKED AS A FIREFIGHTER WITH FAA, WAS ADVANCED 30 DAYS OF SICK LEAVE AT THE DIRECTION OF FAA'S SAFETY DIVISION CHIEF ON JULY 29, 1979, BECAUSE OF HIS CERTIFIED INABILITY TO PERFORM AS A FIREFIGHTER DUE TO ILLNESS. IT WAS THEN BELIEVED THAT MR. SWEENEY WOULD RETURN TO WORK BY OR BEFORE THE EXPIRATION OF THE ADVANCE SICK LEAVE PERIOD. MR. SWEENEY, HOWEVER, APPLIED FOR DISABILITY RETIREMENT AND THE FAA THEN DECIDED TO TERMINATE THE BALANCE OF THE ADVANCE SICK LEAVE AND TO PLACE MR. SWEENEY ON LEAVE WITHOUT PAY.

MR. SWEENEY, HOWEVER, STATES THAT THE ACCOUNTING OFFICERS HAD IMPROPERLY ALTERED HIS PAY RECORDS IN MAKING THEIR DETERMINATION, AND THAT AFTER HIS SICK LEAVE ADVANCE WAS GRANTED IT WAS ARBITRARILY TERMINATED PRIOR TO HIS USING ALL OF HIS ADVANCE. HE FEELS THAT HE IS ENTITLED TO SOME 200 HOURS OF THE SICK LEAVE ORIGINALLY ADVANCED BUT SUBSEQUENTLY TERMINATED, AND HAS REQUESTED REVIEW OF OUR CLAIMS GROUP'S DENIAL OF HIS CLAIM.

IN SUPPORT OF MR. SWEENEY'S REQUEST FOR REVIEW, HE HAS POINTED OUT THAT THE VOUCHERS RELIED ON BY THE FAA ACCOUNTING OFFICERS INCORRECTLY SHOW AMOUNTS PAID FOR OVERTIME FOR PERIODS AFTER THE DATE OF HIS RETIREMENT. WHETHER OR NOT HIS STATEMENT IS ACCURATE IS IRRELEVANT TO THE ISSUE OF HIS ENTITLEMENT TO 200 HOURS OF SICK LEAVE AND WE FIND NO BASIS TO PURSUE THAT MATTER.

ADDITIONALLY, MR. SWEENEY HAS PROVIDED THE NAMES OF PESONS FAMILIAR WITH HIS CASE WHOM HE FEELS WE SHOULD CONTACT. IN THIS REGARD, WE NOTE THAT IT IS THE RESPONSIBILITY OF THE CLAIMANT, NOT GAO, TO PROVIDE EVIDENCE ESTABLISHING HIS CLAIM. 4 C.F.R. SEC. 31.7 (1980). THIS OFFICE DOES NOT INTERVIEW WITNESSES, BUT ADJUDICATES CLAIMS BASED ON REVIEW OF THE WRITTEN RECORD. BARBARA S. MCCOY, B-196686, JANUARY 17, 1980.

IN FURTHER REVIEWING MR. SWEENEY'S CLAIM, WE POINT OUT THAT WHETHER OR NOT ADVANCE SICK LEAVE IS TO BE GRANTED TO AN EMPLOYEE IN A GIVEN CASE IS EXCLUSIVELY WITHIN THE DISCRETION OF THE EMPLOYING AGENCY, 5 U.S.C. SEC. 6307(C) (1976). WE HAVE UPHELD AN AGENCY'S DECISION NOT TO GRANT AN EMPLOYEE ADVANCE SICK LEAVE AND TO PLACE AN EMPLOYEE ON LEAVE WITHOUT PAY FOR ABSENCE FROM WORK AFTER THE EMPLOYEE APPLIED FOR DISABILITY RETIREMENT. B-182085, DECEMBER 24, 1974. ALTHOUGH THE AGENCY MAY NOT EXERCISE THIS DISCRETION IN AN ARBITRARY MANNER, WE DO NOT FIND THAT THE FAA ACTED ARBITRARILY IN TERMINATING MR. SWEENEY'S ADVANCE SICK LEAVE. ACCORDINGLY, THERE IS NO LEGAL BASIS TO ALLOW MR. SWEENEY'S CLAIM, AND THE CLAIMS GROUP'S DISALLOWANCE IS SUSTAINED.