B-219211, DEC 9, 1985

B-219211: Dec 9, 1985

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THE FURLOUGH PLAN WAS LATER CANCELLED AND THE EMPLOYEE WAS ALLOWED TO SUBSTITUTE ANNUAL LEAVE FOR THE 3 DAYS. THE EMPLOYEE NOW REQUESTS RESTORATION OF THE ANNUAL LEAVE ON THE BASIS THAT THE AGENCY SHOULD HAVE EXCUSED THE FURLOUGH DAYS WITHOUT CHARGE TO LEAVE. THERE IS NO INDICATION THAT THE AGENCY ABUSED ITS DISCRETION IN THIS CASE. RUDOLPH - EXCUSED ABSENCES WITH PAY - ADMINISTRATIVE AUTHORITY: THIS DECISION IS IN RESPONSE TO A LETTER FROM MR. IS APPEALING SETTLEMENT Z-2847682. THE BASIS FOR THAT DISALLOWANCE WAS A FINDING THAT ONLY THE EMPLOYING AGENCY MAY AUTHORIZE AN EMPLOYEE TO BE ABSENT FROM DUTY IN A PAY STATUS AND WITHOUT CHARGE TO ANNUAL LEAVE. RUDOLPH IS AN EMPLOYEE OF THE BUREAU OF THE CENSUS.

B-219211, DEC 9, 1985

LEAVES OF ABSENCE - ADMINISTRATIVE LEAVE - OFFICIAL BUSINESS REQUIREMENT - BRIEF, PARTIAL SHUTDOWN OF AGENCY, ETC. - FUNDING GAP POSSIBILITY DIGEST: INCIDENT TO A FORCED AGENCY FURLOUGH PLAN, AN EMPLOYEE TOOK 3 FURLOUGH DAYS OFF WITHOUT PAY DURING A SCHEDULED FURLOUGH PERIOD. THE FURLOUGH PLAN WAS LATER CANCELLED AND THE EMPLOYEE WAS ALLOWED TO SUBSTITUTE ANNUAL LEAVE FOR THE 3 DAYS. HOWEVER, THE EMPLOYEE NOW REQUESTS RESTORATION OF THE ANNUAL LEAVE ON THE BASIS THAT THE AGENCY SHOULD HAVE EXCUSED THE FURLOUGH DAYS WITHOUT CHARGE TO LEAVE. WE UPHOLD HIS AGENCY'S DENIAL OF HIS REQUEST FOR RESTORATION OF ANNUAL LEAVE. EACH AGENCY HAS THE DISCRETIONARY AUTHORITY TO DETERMINE THE SITUATIONS IN WHICH AN EMPLOYEE MAY BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE; THERE IS NO INDICATION THAT THE AGENCY ABUSED ITS DISCRETION IN THIS CASE.

STEVEN M. RUDOLPH - EXCUSED ABSENCES WITH PAY - ADMINISTRATIVE AUTHORITY:

THIS DECISION IS IN RESPONSE TO A LETTER FROM MR. STEVEN M. RUDOLPH. IS APPEALING SETTLEMENT Z-2847682, APRIL 23, 1984, ISSUED BY OUR CLAIM GROUP, WHICH DISALLOWED HIS REQUEST TO CONVERT 3 EXCESS FURLOUGH DAYS TO LEAVE WITH PAY WITHOUT CHARGE TO ANNUAL LEAVE. THE BASIS FOR THAT DISALLOWANCE WAS A FINDING THAT ONLY THE EMPLOYING AGENCY MAY AUTHORIZE AN EMPLOYEE TO BE ABSENT FROM DUTY IN A PAY STATUS AND WITHOUT CHARGE TO ANNUAL LEAVE. FOR REASONS STATED BELOW, WE SUSTAIN THE DISALLOWANCE OF MR. RUDOLPH'S REQUEST.

BACKGROUND

MR. RUDOLPH IS AN EMPLOYEE OF THE BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE. EARLY IN 1982, THE BUREAU NOTIFIED ITS EMPLOYEES THAT AS A RESULT OF A PROJECTED APPROPRIATION SHORTFALL FOR THE BUREAU FOR THE REMAINDER OF FISCAL YEAR 1982, A FURLOUGH WOULD BE INSTITUTED FOR 10, BUT NOT MORE THAN 22 WORKDAYS, BEGINNING WITH THE MARCH 7 - MARCH 20, 1982 PAY PERIOD. EACH EMPLOYEE WAS PROVIDED WITH A COPY OF THE BUREAU'S COMPREHENSIVE FURLOUGH PLAN. PHASE I OF THAT PLAN-- WHICH COVERED THE FIRST 5 DAYS OF FURLOUGH-- REQUIRED THAT EACH EMPLOYEE BE FURLOUGHED 1 DAY PER PAY PERIOD FOR THE FIRST 2 PAY PERIODS. THE TIMING OF THE REMAINING 3 FURLOUGH DAYS WAS TO BE AT THE OPTION OF THE INDIVIDUAL EMPLOYEE, SO LONG AS THE SCHEDULED USE OF THOSE DAYS WAS APPROVED IN ADVANCE AND SCHEDULED TO BE TAKEN NOT LATER THAN MAY 15, 1982.

APPARENTLY, MANY EMPLOYEES CHOSE TO SCHEDULE THE REMAINING 3 FURLOUGH DAYS ON A 1 FURLOUGH DAY PER PAY PERIOD BASIS, THUS EFFECTIVELY MINIMIZING THE FINANCIAL IMPACT THE FURLOUGHING ACTION WOULD HAVE ON THEM. MR. RUDOLPH, HOWEVER, CHOSE A DIFFERENT COURSE. INSTEAD OF SPREADING OUT THE ADDITIONAL FURLOUGH DAYS BEYOND THE SPECIFICALLY SCHEDULED FIRST 2 DAYS (MARCH 8 AND 26), HE ALSO ELECTED TO BE FURLOUGHED ON MARCH 23, 24 AND 25. THOSE SCHEDULED DAYS WERE APPROVED.

ON APRIL 1, 1982, EACH EMPLOYEE WAS NOTIFIED THAT, BECAUSE OF THE IMPROVED FISCAL CIRCUMSTANCES AND PENDING THE OUTCOME OF FURTHER BUDGETARY EVALUATIONS, THE AGENCY WAS POSTPONING THE IMPOSITION OF ANY FURTHER FURLOUGH DAYS THAT INDIVIDUALS HAD SCHEDULED TO BE TAKEN DURING THE NEXT SEVERAL WEEKS. FURTHER, EMPLOYEES WHO HAD TAKEN MORE THAN THE FIRST 2 REQUIRED FURLOUGH DAYS PRIOR TO APRIL 1 WERE PERMITTED TO CONVERT SUCH EXCESS FURLOUGH DAYS TO ANNUAL LEAVE. THIS PROPOSED CONVERSION WAS REAFFIRMED ON NOVEMBER 22, 1982.

ON OCTOBER 15, 1982, MR. RUDOLPH REQUESTED THAT HIS 3 EXCESS FURLOUGH DAYS BE CONVERTED TO AN EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE AND THAT HE RECEIVE PAY FOR THEM. HE CONTENDED THAT SINCE THOSE DAYS WERE ORDERED TO BE TAKEN, HIS USE OF THOSE DAYS WAS COMPLETELY BEYOND HIS CONTROL. THE AGENCY RULED THAT HE AND ALL OTHER EMPLOYEES HAD BEEN PROVIDED THE SAME FURLOUGH OPTION FROM WHICH THEY COULD CHOOSE, THEREBY GIVING EACH EMPLOYEE THE GREATEST POSSIBLE LATITUDE. THUS, THE AGENCY CONCLUDED THAT THE SITUATION RESULTED FROM HIS PERSONAL CHOICE AND WAS NOT BEYOND HIS CONTROL. HIS CLAIM WAS DENIED ON THIS BASIS. OUR CLAIMS GROUP UPHELD THE AGENCY'S DETERMINATION.

DECISION

WE HOLD THAT THE AGENCY WAS NOT REQUIRED TO GRANT MR. RUDOLPH AN EXCUSED ABSENCE WITH PAY WITHOUT CHARGE TO ANNUAL LEAVE FOR THE EXCESS FURLOUGH DAYS TAKEN.

IN THE ABSENCE OF A GOVERNING STATUTE OR REGULATION, WE HAVE HELD THAT, UNDER GENERAL GUIDANCE OF DECISIONS OF THIS OFFICE, AGENCIES HAVE DISCRETIONARY AUTHORITY TO DETERMINE THE SITUATIONS IN WHICH AN EMPLOYEE MAY BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE. MERIT SYSTEMS PROTECTION BOARD, 62 COMP.GEN. 1 (1982); ALEX KALE, 55 COMP.GEN. 779 (1976). THEREFORE, AN AGENCY MAY EXERCISE ITS DISCRETIONARY AUTHORITY NOT TO GRANT EMPLOYEES EXCUSED ABSENCES WITH PAY FOR FURLOUGH DAYS, IN THE ABSENCE OF A SHOWING THAT OTHERS SIMILARLY SITUATED WERE GRANTED AN EXCUSED ABSENCE WITH PAY.

MR. RUDOLPH CONTENDS THAT: (1) HE ACTED PROPERLY UNDER THE CIRCUMSTANCES; (2) NO AGENCY HAS THE AUTHORITY TO INSTITUTE ANY ADMINISTRATIVE ACTION THAT ADVERSELY AFFECTS ONE EMPLOYEE MORE THAN OTHERS; AND (3) EMPLOYEES ON TEMPORARY DUTY TRAVEL WERE TREATED DIFFERENTLY. THERE IS NO INDICATION THAT MR. RUDOLPH ACTED IMPROPERLY; HOWEVER, HIS CONDUCT IS NOT AT ISSUE. MOREOVER, WE DO NOT FIND THAT HE WAS TREATED DIFFERENTLY FROM OTHER EMPLOYEES SIMILARLY SITUATED. APPARENTLY, A SMALL NUMBER OF EMPLOYEES WERE EXCUSED FOR FURLOUGH DAYS WHICH THEY WERE DIRECTED TO TAKE ON PARTICULAR DATES BECAUSE OF TRAVEL COMMITMENTS. HOWEVER, AS FAR AS WE CAN DETERMINE, ALL EMPLOYEES WHO EXERCISED CONTROL OVER THE SELECTION OF THEIR FURLOUGH DAYS, SUCH AS MR. RUDOLPH, WERE DENIED EXCUSED ABSENCES WITHOUT CHARGE TO LEAVE.

ACCORDINGLY, WE CONCLUDE THAT THE AGENCY DID NOT ABUSE ITS DISCRETION IN THIS CASE, AND WE MUST DENY MR. RUDOLPH'S CLAIMS.