B-150550, JAN. 28, 1963

B-150550, JAN. 28, 1963

TO MR. CALVIN L. WOOTTON:

ON DECEMBER 13, 1962, YOU REQUESTED THAT WE RECONSIDER OUR OFFICE SETTLEMENT OF OCTOBER 4, 1962, BY WHICH YOU WERE ALLOWED COMPENSATION FOR THE PERIOD OF YOUR UNJUSTIFIED SUSPENSION FROM EMPLOYMENT IN THE POSTAL FIELD SERVICE AT BALTIMORE, MARYLAND.

YOU ASK THAT THERE BE ALLOWED AN ADDITIONAL $290.50 WHICH YOU BELIEVE SHOULD NOT HAVE BEEN INCLUDED AS INTERIM EARNINGS AND DEDUCTED FROM YOUR RETROACTIVE COMPENSATION. ALSO, YOU ASK THAT WE CONSIDER THE POST OFFICE DEPARTMENT'S ACTION IN CREDITING YOU WITH AN ANNUAL LEAVE BALANCE OF MINUS 37 HOURS AT THE TIME OF YOUR REINSTATEMENT.

THE RECORD SHOWS THAT THE POST OFFICE DEPARTMENT, AT THE TIME YOU WERE SUSPENDED IN SEPTEMBER 1961, COLLECTED FROM YOU THE VALUE OF 37 HOURS OF ANNUAL LEAVE BECAUSE YOU HAD USED UNEARNED ANNUAL LEAVE IN THAT AMOUNT. YOU WERE REPAID THE AMOUNT SO COLLECTED BY OUR SETTLEMENT OF OCTOBER 4 IN WHICH THE TOTAL AMOUNT WAS COMPUTED BY ADDING THE SALARY YOU WOULD HAVE RECEIVED DURING YOUR SUSPENSION (15 PAY PERIODS) TO THE 37 HOURS OF LEAVE PAYMENT DUE. SINCE YOU WERE REPAID THE AMOUNT COLLECTED FROM YOU FOR UNEARNED ANNUAL LEAVE THE BALANCE OF MINUS 37 HOURS ANNUAL LEAVE WAS PROPERLY RESTORED AS YOUR LEAVE BALANCE WHEN YOU WERE REINSTATED.

DURING THE PERIOD OF YOUR SUSPENSION YOU WORKED AS A CHARTER BUS DRIVER FOR CLYDE'S CHARTER BUS SERVICE, INC., GLEN BURNIE, MARYLAND. YOU SAY THAT YOU HAD BEEN TRAINED FOR BUS DRIVING AND HAD BEEN PUT ON THE "EXTRA LIST" OF CLYDE'S CHARTER BUS SERVICE BEFORE YOU WERE SUSPENDED. YOU INTENDED TO SUPPLEMENT YOUR INCOME AS A POSTAL FIELD SERVICE EMPLOYEE FROM THAT SOURCE BUT HAD NOT ACTUALLY WORKED PRIOR TO SUSPENSION. YOU EARNED A TOTAL OF $889.50 WHILE YOU WERE SUSPENDED, $290.50 OF THAT AMOUNT YOU EARNED ON DAYS WHICH WOULD HAVE BEEN YOUR DAYS OFF HAD YOU CONTINUED TO WORK FOR THE POST OFFICE. SINCE RETURNING TO EMPLOYMENT IN THE POST OFFICE YOU HAVE OCCASIONALLY WORKED FOR CLYDE'S CHARTER BUS SERVICE ON YOUR DAYS OFF.

THE DEDUCTION OF INTERIM EARNINGS FROM RETROACTIVE COMPENSATION PAID AN EMPLOYEE WHO HAS BEEN IMPROPERLY SUSPENDED IS REQUIRED BY SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, CH. 447, 62 STAT. 354, 5 U.S.C. 652 (B). THE RULE EXPRESSED BY THE COURT OF CLAIMS AND BY OUR OFFICE UNDER THAT PROVISION IS THAT ONLY THOSE ADDITIONAL EARNINGS WHICH WOULD HAVE ACCRUED TO THE EMPLOYEE CONCERNED REGARDLESS OF HIS SUSPENSION ARE NOT TO BE DEDUCTED FROM RETROACTIVE COMPENSATION. JACKSON V. UNITED STATES, 121 CT.CL. 405; 32 COMP. GEN. 408; 34 ID. 384. EARNINGS OF A SUSPENDED EMPLOYEE ON WHAT WOULD HAVE BEEN HIS USUAL NONWORKDAYS HAD HE NOT BEEN SUSPENDED ARE NOT AUTOMATICALLY TO BE SUBTRACTED FROM INTERIM EARNINGS BUT ARE SUBJECT TO THE RULE APPLICABLE TO OTHER EARNINGS. B-138267, MARCH 31, 1959.

SINCE YOU HAD NO INCOME FROM OUTSIDE EMPLOYMENT PRIOR TO YOUR SUSPENSION AND BEGAN TO RECEIVE COMPENSATION FROM CLYDE'S CHARTER BUS SERVICE ONLY AFTER YOU WERE ACTUALLY SEPARATED WE MUST HOLD THAT THERE IS NOT SUFFICIENT EVIDENCE TO ESTABLISH THAT ANY PART OF THE AMOUNT YOU RECEIVED FROM CLYDE'S WOULD HAVE ACCRUED TO YOU HAD YOU NOT BEEN SUSPENDED.

THEREFORE, OUR SETTLEMENT OF OCTOBER 4, 1962, WAS CORRECT AND MUST BE SUSTAINED.