B-186364, MAY 16, 1978, 57 COMP.GEN. 464

B-186364, MAY 16, 1978, 57 COMP.GEN. 464

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - ENTITLEMENT DISTRICT OF COLUMBIA GOVERNMENT EMPLOYEE WAS ERRONEOUSLY SEPARATED AND LATER REINSTATED. HE IS ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596, LESS AMOUNTS RECEIVED AS SEVERANCE PAY AND UNEMPLOYMENT COMPENSATION. EMPLOYEE IS ALSO ENTITLED TO CREDIT FOR ANNUAL LEAVE EARNED DURING ERRONEOUS SEPARATION. MAXIMUM AMOUNT OF LEAVE IS TO BE RESTORED AND BALANCE IS TO BE CREDITED TO A SEPARATE LEAVE ACCOUNT. DEDUCTIONS ARE ALSO TO BE MADE FROM BACK PAY FOR LUMP-SUM PAYMENT OF TERMINAL LEAVE.

IN THE MATTER OF ERNEST E. SARGENT-- REINSTATED EMPLOYEE OF DISTRICT OF COLUMBIA-- BACK PAY, MAY 16, 1978:

THIS ACTION IS IN RESPONSE TO A LETTER FROM CHARLES E. DAVIS, AN AUTHORIZED ACCOUNTING OFFICER OF THE DISTRICT OF COLUMBIA. UNDER 31 U.S.C. 82D (1970), HE REQUESTS OUR DECISION AS TO WHICH OF FOUR VOUCHERS MADE ON BEHALF OF ERNEST E. SARGENT, AN EMPLOYEE OF THE DISTRICT OF COLUMBIA, SHOULD BE CERTIFIED FOR PAYMENT OF BACK PAY UNDER 5 U.S.C. 5596 (1976).

THE FEDERAL EMPLOYEE APPEALS AUTHORITY OF THE CIVIL SERVICE COMMISSION (CSC), IN A DECISION DATED DECEMBER 19, 1975, HELD THAT MR. SARGENT HAD BEEN IMPROPERLY SEPARATED FROM THE DISTRICT OF COLUMBIA PUBLIC SCHOOL SYSTEM (DCPS) IN THAT HIS SEPARATION BY REDUCTION-IN FORCE (RIF) ACTION WAS PROCEDURALLY DEFECTIVE. THE CSC RECOMMENDED THAT THE EMPLOYEE'S SEPARATION BE CANCELLED AND THAT HE BE ASSIGNED TO THE POSITION OF ACCOUNTING OFFICER GS-510-12, OR TO ANY OTHER PERMANENT POSITION OF LIKE GRADE, SALARY, AND TENURE, RETROACTIVELY EFFECTIVE TO THE DAY FOLLOWING THE EFFECTIVE DATE OF THE EMPLOYEE'S SEPARATION, AUGUST 17, 1974. AT THE TIME OF THE EMPLOYEE'S SEPARATION HE WAS HOLDING THE POSITION OF ACCOUNTING OFFICER, GS-510-14, DEPARTMENT OF FINANCE DIVISION OF MANAGEMENT SERVICES, DCPS. THE EMPLOYEE WAS REINSTATED BY THE DCPS EFFECTIVE MARCH 1, 1976, IN ACCORDANCE WITH THE CSC RECOMMENDATIONS.

WITH REGARD TO REINSTATEMENT, THIS OFFICE HAS BEEN ASKED TO DETERMINE: (1) THE APPROPRIATE ACTION TO BE TAKEN CONCERNING ANNUAL LEAVE; (2) IF SEVERANCE PAY MUST BE REFUNDED; (3) IF UNEMPLOYMENT COMPENSATION RECEIVED DURING THE PERIOD OF HIS SEPARATION MUST BE DEDUCTED FROM BACK PAY; AND (4) THE TOTAL AMOUNT OF BACK PAY DUE IN THE CIRCUMSTANCES DESCRIBED.

THE FACTS CONCERNING MR. SARGENT'S SEPARATION AND THE REASONS FOR HIS REINSTATEMENT ARE SET OUT IN THE CSC'S DECISION OF DECEMBER 19, 1975. ACCORDING TO A MEMORANDUM DATED MARCH 4, 1976, FROM THE ACTING SUPERINTENDENT, DCPS, THE EMPLOYEE RETURNED TO DUTY ON MARCH 1, 1976, AND WAS PLACED RETROACTIVELY IN THE POSITION OF OPERATING ACCOUNTANT, GS-510- 12. HIS SALARY WAS ADJUSTED BASED ON THE HIGHEST PREVIOUS RATE OF PAY TO REFLECT THE 10TH STEP OF THE GS-12 LEVEL.

ANNUAL LEAVE

AT THE TIME OF SEPARATION HE WAS PAID A LUMP-SUM PAYMENT FOR 354 HOURS OF ANNUAL LEAVE. THIS APPARENTLY REPRESENTED A COMBINATION OF CARRYOVER OR ACCRUED ANNUAL LEAVE FOR CALENDAR YEAR 1973, LEAVE EARNED BUT NOT USED IN 1974 AND SIXTEEN (16) HOURS FOR TWO PAID HOLIDAYS THAT OCCURRED ON LABOR DAY AND COLUMBUS DAY, 1974, TOTALING 354 HOURS.

IF HE HAD NOT BEEN SEPARATED HE WOULD HAVE EARNED 64 ADDITIONAL HOURS OF LEAVE IN 1974 FOR A TOTAL OF 418 HOURS AT THE END OF THE 1974 LEAVE YEAR (JANUARY 4, 1975). IN ADDITION HE WOULD HAVE EARNED 208 HOURS OF ANNUAL LEAVE DURING LEAVE YEAR 1975 AND 32 HOURS ANNUAL LEAVE FROM JANUARY 3, 1976, THROUGH FEBRUARY 27, 1976. THIS AMOUNTS TO A GRAND TOTAL OF 658 HOURS OF ANNUAL LEAVE FOR WHICH AN ACCOUNTING MUST BE MADE.

SECTION 5596 OF TITLE 5, U.S.C. PROVIDES THE AUTHORITY FOR ADJUSTING THE BACK PAY DUE TO EMPLOYEES WHO ARE FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. IT APPLIES TO THE DISTRICT OF COLUMBIA GOVERNMENT. SUBSECTION (B) OF THAT SECTION MUST BE FOLLOWED IN ACCOUNTING FOR ANNUAL LEAVE IN THIS CASE.

THE PURPOSE OF PUBLIC LAW 94-172 IN AMENDING 5 U.S.C. 5596(B)(2) TO PROVIDE FOR RESTORATION OF ANNUAL LEAVE IN EXCESS OF THE MAXIMUM LEAVE ACCUMULATION PERMITTED BY LAW IS EXPLAINED AT SENATE REPORT NO. 94-356, 94TH CONG., 1ST SES., PAGE 3, AS FOLLOWS:

SUBSECTION (A) OF THE FIRST SECTION OF THE BILL AMENDS SECTION 5596(B)(2) OF TITLE 5, UNITED STATES CODE. UNDER THE EXISTING PROVISIONS OF SECTION 5596, AN EMPLOYEE WHO IS RESTORED TO DUTY FOLLOWING A PERIOD OF SEPARATION RESULTING FROM AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION IS DEEMED FOR ALL PURPOSES TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THE PERIOD OF SEPARATION EXCEPT THAT HE MAY NOT BE CREDITED WITH ANNUAL LEAVE IN EXCESS OF THE MAXIMUM AMOUNT OF LEAVE THAT IS AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION (GENERALLY, 240 HOURS).

SUBSECTION (A) AMENDS SECTION 5596(B)(2) SO AS TO PERMIT RESTORATION OF ALL OF THE ANNUAL LEAVE THAT AN EMPLOYEE WOULD HAVE EARNED DURING THE PERIOD OF SEPARATION. HOWEVER, ANY ANNUAL LEAVE WHICH IS IN EXCESS OF THE EMPLOYEE'S ANNUAL LEAVE CEILING SHALL BE CREDITED TO A SEPARATE LEAVE ACCOUNT. THE RESTORED LEAVE THEN WILL BE AVAILABLE FOR USE BY THE EMPLOYEE WITHIN REASONABLE TIME LIMITS TO BE PRESCRIBED BY REGULATIONS OF THE CIVIL SERVICE COMMISSION. * * *

THE EMPLOYEE UPON REINSTATEMENT SHOULD HAVE BEEN CREDITED WITH THE MAXIMUM LEAVE ACCUMULATION PERMITTED BY LAW, 240 HOURS. THE BALANCE OF 418 HOURS SHOULD BE CREDITED TO A SEPARATE LEAVE ACCOUNT AND AVAILABLE TO THE EMPLOYEE FOR USE BY THE EMPLOYEE PURSUANT TO 5 U.S.C. 5596(B)(2)(A) AND IMPLEMENTING REGULATIONS CONTAINED IN FEDERAL PERSONNEL MANUAL SYSTEM LETTER 550-69 DATED MAY 24, 1976, WHICH GIVES THE EMPLOYEE 2 YEARS FROM THE DATE ON WHICH THE ANNUAL LEAVE IS CREDITED TO THE SEPARATE ACCOUNT IN WHICH TO SCHEDULE AND USE SUCH LEAVE. IF THE EMPLOYEE HAD NOT BEEN SEPARATED, THE ANNUAL LEAVE ACCUMULATION FOR WHICH HE WAS PAID WOULD NOT HAVE BEEN SO LIQUIDATED. THEREFORE, SUCH PAYMENT IS A PROPER SETOFF AGAINST THE BACK PAY. B-189198, AUGUST 25, 1977, AND B-171716, OCTOBER 26, 1976.

SEVERANCE PAY

SEVERANCE PAY IS AUTHORIZED BY 5 U.S.C. 5595 (1976) FOR EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO ARE INVOLUNTARILY SEPARATED FROM THE SERVICE AND NOT REMOVED FOR CAUSE. HOWEVER, 5 U.S.C. 5596(B) (1976) ENTITLES AN EMPLOYEE TO BACK PAY WHEN HE UNDERGOES AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF HIS PAY. IF, AS A RESULT OF THE APPLICABILITY OF SECTION 5596, AN EMPLOYEE IS ENTITLED TO BACK PAY, HE IS "* * * FOR ALL PURPOSES * * * DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY * * *" DURING THE PERIOD OF WRONGFUL SEPARATION. 5 U.S.C. 5596(B)(2) (1976).

IN THE PRESENT CASE, THE CSC DETERMINED THAT THE EMPLOYEE WAS WRONGFULLY SEPARATED ON AUGUST 17, 1974. HE WAS, THEREFORE, RETROACTIVELY REINSTATED TO THE DATE OF HIS SEPARATION AND UNDER 5 U.S.C. 5596 ENTITLED TO RECEIVE BACK PAY FOR THE SAME PERIOD. THUS, THE EMPLOYEE IS ENTITLED TO RECEIVE THE AMOUNT HE NORMALLY WOULD HAVE RECEIVED IF THE UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED. AS SUCH, THE SEPARATION IS REGARDED AS IF IT NEVER OCCURRED AND THE EMPLOYEE IS DEEMED, FOR ALL PURPOSES, TO HAVE RENDERED SERVICE DURING THE PERIOD COVERED BY THE CORRECTIVE PERSONNEL ACTION. B-178551, JANUARY 2, 1976; B-167875, OCTOBER 31, 1969.

AN EMPLOYEE'S ENTITLEMENT TO SEVERANCE PAY, HOWEVER, IS CONDITIONED UPON ACTUAL SEPARATION FROM THE SERVICE. SINCE THE EMPLOYEE IS REGARDED, FOR ALL PURPOSES, AS HAVING PERFORMED SERVICES DURING THE PERIOD OF WRONGFUL SEPARATION, HE MAY NOT SIMULTANEOUSLY CLAIM THE STATUS OF A "SEPARATED" EMPLOYEE DURING THE SAME PERIOD. SEE AINSWORTH V. UNITED STATES, 399 F.2D 176, 185 (1968). ACCORDINGLY, THE SEVERANCE PAY PAID TO THE EMPLOYEE IS A PROPER ITEM FOR DEDUCTION FROM THE BACK PAY. B-185192, MARCH 2, 1976. COMPARE B-166683, MAY 21, 1969.

UNEMPLOYMENT COMPENSATION

DURING HIS SEPARATION, THE EMPLOYEE RECEIVED $6,858 FROM THE DISTRICT OF COLUMBIA IN UNEMPLOYMENT COMPENSATION. IT IS CONSIDERED THAT THIS SUM SHOULD BE TREATED THE SAME AS THE SEVERANCE PAY. THAT IS, SINCE THE EMPLOYEE WAS DEEMED TO HAVE BEEN EMPLOYED AT ALL TIMES DURING HIS WRONGFUL SEPARATION, HE WAS NOT ENTITLED TO UNEMPLOYMENT COMPENSATION AND SUCH SUMS PAID TO THE EMPLOYEE MAY PROPERLY BE RECOUPED. THIS DETERMINATION IS BASED UPON 46 DISTRICT OF COLUMBIA CODE 301(D) AND (E) WHICH PROVIDE AS FOLLOWS:

(D) "EARNINGS" MEANS ALL REMUNERATION PAYABLE FOR PERSONAL SERVICES, INCLUDING WAGES, COMMISSIONS, AND BONUSES, AND THE CASH VALUE OF ALL REMUNERATION PAYABLE IN ANY MEDIUM OTHER THAN CASH WHETHER RECEIVED FROM EMPLOYMENT, SELF-EMPLOYMENT OR ANY OTHER WORK. AFTER AUGUST 29, 1946, BACK PAY AWARDED UNDER ANY STATUTE OF THE DISTRICT OR OF THE UNITED STATES SHALL BE TREATED AS EARNINGS * * *

(E) AN INDIVIDUAL SHALL BE DEEMED "UNEMPLOYED" WITH RESPECT TO ANY WEEK DURING WHICH HE PERFORMS NO SERVICES AND WITH RESPECT TO WHICH NO EARNINGS ARE PAYABLE TO HIM, OR WITH RESPECT TO ANY WEEK OF LESS THAN FULL-TIME WORK IF THE EARNINGS PAYABLE TO HIM WITH RESPECT TO SUCH WEEK ARE LESS THAN HIS WEEKLY BENEFIT AMOUNT.

BECAUSE OF THE RETROACTIVE REINSTATEMENT OF THE EMPLOYEE, IT IS APPARENT THAT HE DID HAVE EARNINGS DURING THIS PERIOD. A PERSON WITH FULL-TIME EARNINGS, INCLUDING BACK PAY AWARDED BY THE DISTRICT IS NOT ENTITLED TO UNEMPLOYMENT COMPENSATION. THIS CASE IS DISTINGUISHABLE FROM 35 COMP.GEN. 241 (1955) AND B-189187, AUGUST 25, 1977. IN 35 COMP.GEN. 241, SUPRA, THE UNEMPLOYMENT COMPENSATION WAS RECEIVED FROM THE STATE OF OKLAHOMA BY A POSTAL SERVICE EMPLOYEE AND SINCE THE EMPLOYEE MIGHT HAVE BEEN REQUIRED TO REFUND THE UNEMPLOYMENT COMPENSATION TO THE STATE COMMISSION OF OKLAHOMA, IT WAS DETERMINED THAT NO DEDUCTION FROM THE BACK PAY FOR FEDERAL EMPLOYMENT SHOULD BE MADE. IN B-189198, SUPRA, IT WAS DETERMINED THAT THE UNEMPLOYMENT COMPENSATION RECEIVED FROM THE DISTRICT OF COLUMBIA SHOULD NOT BE DEDUCTED FROM A BACK PAY AWARD TO AN EMPLOYEE OF THE COMMUNITY SERVICES ADMINISTRATION, A FEDERAL AGENCY, CITING FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S8-5F AND S8-5I (NOW SUBCHAPTER S8- 6E(4)). THERE, EVEN THOUGH THE UNEMPLOYMENT COMPENSATION HAD BEEN PAID BY THE DISTRICT OF COLUMBIA, THE BACK PAY WAS FOR EMPLOYMENT IN A FEDERAL AGENCY, NOT THE DISTRICT OF COLUMBIA. IN THIS CASE THE EMPLOYEE WAS EMPLOYED BY THE DISTRICT OF COLUMBIA FROM WHICH HE RECEIVED THE BACK PAY AND ALSO RECEIVED UNEMPLOYMENT COMPENSATION FROM THE DISTRICT OF COLUMBIA FOR THE SAME PERIOD OF TIME. ACCORDINGLY, THE AMOUNT OF UNEMPLOYMENT COMPENSATION PAID BY THE DISTRICT OF COLUMBIA IS A PROPER ITEM FOR DEDUCTION FROM THE BACK PAY.

THE FILE DISCLOSES THAT THE EMPLOYEE CONSIDERS THAT HIS BACK PAY SHOULD BE CALCULATED ON THE BASIS OF A GS-14, THE GRADE HELD BY HIM AT THE TIME OF SEPARATION. HOWEVER, THE FEDERAL EMPLOYEE APPEALS AUTHORITY SPECIFICALLY RULED THAT THE EMPLOYEE SHOULD HAVE BEEN OFFERED A POSITION AT THE GS-12 LEVEL. ALSO, SINCE QUESTIONS REGARDING CLASSIFICATION OF POSITIONS ARE SOLELY WITHIN THE JURISDICTION OF THE EMPLOYING AGENCY AND THE CSC (5 U.S.C. 5107, ET SEQ. (1976)), THIS OFFICE LACKS AUTHORITY TO CONSIDER PROPRIETY OF CLASSIFICATION ACTIONS OR TO ENTERTAIN CLAIMS FOR BACK PAY BASED ON CONTENTIONS THAT POSITION CLASSIFICATION WAS IMPROPER. SEE B-187234, DECEMBER 8, 1976.

IN CONCLUSION, PAYMENT FOR BACK PAY SHOULD BE MADE ON THE BASIS OF THE DEDUCTIONS AND AMOUNTS SHOWN ON VOUCHER "D" OF THE DISTRICT OF COLUMBIA ACCOUNTING OFFICER, WHICH REDUCES THE BACK PAY DUE BY THE AMOUNTS OF TERMINAL LEAVE PAY, SEVERANCE PAY, AND UNEMPLOYMENT COMPENSATION RECEIVED BY MR. SARGENT. IN ADDITION A SPECIAL LEAVE ACCOUNT SHOULD BE ESTABLISHED IN ACCORDANCE WITH 5 U.S.C. 5596(B)(2) IN THE AMOUNT OF 418 HOURS AND THE MAXIMUM OF 240 HOURS RESTORED TO HIS REGULAR LEAVE ACCOUNT.