B-172128, APR 12, 1971

B-172128, APR 12, 1971

CLAIM FOR BACK PAY - AVAILABILITY FOR WORK SUSTAINING CLAIMS DIVISION ACTION DENYING CLAIM FOR BACK PAY FOR A PERIOD OF SEPARATION FROM EMPLOYMENT BY EMMETT G. ROBINSON, A POST OFFICE EMPLOYEE. ALTHOUGH THE REMOVAL ACTION DATED OCTOBER 4, 1968, WAS CANCELLED ON NOVEMBER 14, 1969, BECAUSE MEDICAL EVIDENCE SHOWED THAT ILLNESS PRECLUDED CLAIMANT FROM QUALIFYING ON HIS ASSIGNED SCHEME EXAMINATION, THE RECORD ALSO INDICATES THAT FROM NOVEMBER 18, 1967, TO OCTOBER 4, 1968, CLAIMANT WORKED ONLY FOUR HOURS, AND IT IS THE AGENCY'S DETERMINATION THAT HE WAS NOT READY, WILLING, AND ABLE TO PERFORM HIS JOB DURING THE PERIOD OF SEPARATION AS REQUIRED BY 5 CFR 550.804(D). THEREFORE THE DECISION OF THE CLAIMS DIVISION IN DENYING BACK PAY WAS PROPER.

TO MR. BENJAMIN J. BIRDSALL:

THIS WILL REFER TO YOUR LETTER OF FEBRUARY 15, 1971, APPEALING THE SETTLEMENT OF OUR CLAIMS DIVISION DATED JANUARY 14, 1971, DISALLOWING A CLAIM FOR BACK PAY FOR A PERIOD OF SEPARATION FROM EMPLOYMENT FILED ON BEHALF OF MR. EMMETT G. ROBINSON. THE MATTER HAS BEEN GIVEN A CAREFUL REVIEW. HOWEVER, WE FIND NO GROUNDS UPON WHICH TO REVERSE THE CLAIMS DIVISION SETTLEMENT.

THE CLAIM PRESENTED BY MR. ROBINSON IS FOR BACK PAY FOR THE PERIOD OCTOBER 4, 1968, THROUGH NOVEMBER 14, 1969, DURING WHICH HE WAS SEPARATED FROM HIS EMPLOYMENT AS A DISTRIBUTION CLERK IN THE POST OFFICE AT METAIRIE, LOUISIANA. THE REASON FOR MR. ROBINSON'S REMOVAL, AS STATED ON A STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED SEPTEMBER 17, 1968, WAS "FAILURE TO PASS ASSIGNED DISTRIBUTION SCHEME." EXAMINATION OF PARTS 333.531, 333.541, AND 333.564 OF THE POSTAL MANUAL DISCLOSES THAT THE "FAILURE" INVOLVED MEANS FAILURE TO PASS EXAMINATIONS THE DISTRIBUTION CLERKS ARE REQUIRED TO TAKE REGULARLY TO DEMONSTRATE THEIR PROFICIENCY IN THE DISTRIBUTION AND DISPATCH OF MAIL.

THE REMOVAL ACTION IN QUESTION WAS INITIATED BY A NOTICE OF PROPOSED REMOVAL DATED NOVEMBER 21, 1967, FOLLOWING AN EARLIER UNSUCCESSFUL ATTEMPT TO DISCHARGE MR. ROBINSON, WHICH WAS FOUND, ON APPEAL TO THE DALLAS REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION, TO BE PROCEDURALLY DEFECTIVE. IT WAS THEN DELAYED UNTIL MARCH 6, 1968, IN RESPONSE TO A REQUEST BY MR. ROBINSON THAT IT BE SUSPENDED UNTIL AFTER A PERIOD OF HOSPITALIZATION FROM WHICH HE WAS DISCHARGED ON JANUARY 26, 1968. MR. ROBINSON THEN APPEALED HIS REMOVAL TO THE POST OFFICE DEPARTMENT'S DALLAS REGIONAL OFFICE, WHICH SUSTAINED THE ACTION, SETTING THE EFFECTIVE DATE AS OCTOBER 4, 1968.

THAT DECISION WAS APPEALED TO THE CIVIL SERVICE COMMISSION'S DALLAS REGIONAL OFFICE ON OCTOBER 10, 1968, RESULTING IN A RECOMMENDATION OF THE APPEALS EXAMINER THAT THE REMOVAL ACTION BE CANCELLED ON GROUNDS THAT "MEDICAL EVIDENCE *** DOES SHOW THAT ILLNESS *** DID PRECLUDE MR. ROBINSON FROM QUALIFYING ON HIS ASSIGNED SCHEME EXAMINATIONS." THE RECOMMENDATION WAS COMBINED WITH ANOTHER ONE; NAMELY, THAT THE AGENCY CONSIDER FILING AN APPLICATION FOR MR. ROBINSON'S RETIREMENT ON DISABILITY, A RECOMMENDATION APPARENTLY NEVER GIVEN FURTHER CONSIDERATION.

THAT DECISION WAS THEN APPEALED BY THE POST OFFICE TO THE BOARD OF APPEALS AND REVIEW WHICH FOUND, IN A DECISION OF JUNE 18, 1969, THAT REMOVAL WAS UNREASONABLE UNDER THE CONDITIONS OF MR. ROBINSON'S HEALTH AS REPORTED TO THE BOARD. INFORMATION PROVIDED BY THE BOARD'S DECISION AND CONTAINED IN A LETTER ADDRESSED TO YOU BY MR. B. M. MYERS, JR., DEPUTY REGIONAL DIRECTOR, OPERATIONS, DATED JANUARY 27, 1970, INDICATES THAT THROUGHOUT THE PERIOD IN QUESTION MR. ROBINSON APPEARS TO HAVE SUFFERED FROM "GOUTY ARTHRITIS" WHICH, EITHER ALONE, OR IN COMBINATION WITH MEDICATION PRESCRIBED, MADE IT DIFFICULT FOR HIM TO MEET PRESCRIBED STANDARDS OF PROFICIENCY.

BY A NOTIFICATION OF PERSONNEL ACTION DATED NOVEMBER 14, 1969, THE REMOVAL ACTION OF OCTOBER 4, 1968, WAS CANCELLED BY THE POST OFFICE, APPARENTLY AFTER A FURTHER UNSUCCESSFUL APPEAL BY THE AGENCY TO THE CIVIL SERVICE COMMISSION FROM THE DECISION OF THE BOARD OF APPEALS AND REVIEW.

IN RESPONSE TO A REQUEST FROM THE POSTAL DATA CENTER FOR INFORMATION REQUIRED BY PART 755.762 OF THE POSTAL MANUAL IN ORDER TO PROCESS A BACK PAY CLAIM FOR MR. ROBINSON, THE POSTMASTER REPLIED THAT SHE "COULD NOT IN GOOD CONSCIENCE AND HONESTY RECOMMEND THAT MR. ROBINSON BE PAID ANY BACK PAY *** ." INSTEAD OF GIVING, AS REQUESTED, AN ESTIMATE OF HOURS THE EMPLOYEE MIGHT HAVE WORKED DURING THE PERIOD OF SEPARATION, THE POSTMASTER RECOUNTED, IN DETAIL, A RECORD OF REPEATED AND SUSTAINED ABSENTEEISM BY MR. ROBINSON THROUGHOUT THE PERIOD JANUARY 1, 1966, UNTIL HIS SEPARATION ON OCTOBER 10, 1968.

AMONG OTHER STATEMENTS CONCERNING HIS ABSENTEEISM, THE POSTMASTER STATES THAT AFTER MR. ROBINSON WAS RESTORED TO HIS POSITION ON NOVEMBER 18, 1967, AFTER THE FIRST ATTEMPT AT REMOVAL, HE WORKED FOR 4 HOURS AND AFTER THAT HE NEVER RETURNED TO WORK AT ALL "UNTIL HIS SEPARATION ON OCTOBER 4, 1968."

IT IS, THEN, ON THE BASIS OF MR. ROBINSON'S LEAVE RECORD PRIOR TO HIS SEPARATION THAT THE POSTMASTER REFUSES TO RECOMMEND PAYMENT OF ANY BACK PAY FOR THE PERIOD HE WAS REMOVED. THE REGIONAL DIRECTOR AND THE POST OFFICE DEPARTMENT CONCUR IN THE VIEWS OF THE POSTMASTER.

IN TAKING THIS POSITION, THE POST OFFICE DEPARTMENT RELIES ON THE ESTABLISHED RULE THAT BACK PAY MAY NOT BE ALLOWED FOR ANY PERIOD IN WHICH THE EMPLOYEE WAS NOT READY, WILLING, AND AVAILABLE TO PERFORM HIS JOB.

IN THIS CONNECTION THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 550.804(D), IMPLEMENTING THE BACK PAY LAW (SECTION 5596 OF TITLE 5, UNITED STATES CODE) PROVIDE AS FOLLOWS:

"(D) IN COMPUTING THE AMOUNT OF BACK PAY UNDER THIS SECTION AND SECTION 5596 OF TITLE 5, UNITED STATES CODE, THE AGENCY MAY NOT (1) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS NOT READY AND ABLE TO PERFORM HIS JOB BECAUSE OF INCAPACITATING ILLNESS, EXCEPT THAT THE AGENCY SHALL GRANT UPON THE REQUEST OF THE EMPLOYEE ANY SICK OR ANNUAL LEAVE TO HIS CREDIT TO COVER THE PERIOD OF INCAPACITY BY REASON OF ILLNESS, OR (2) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS UNAVAILABLE FOR THE PERFORMANCE OF HIS JOB AND HIS UNAVAILABILITY WAS NOT RELATED TO, OR CAUSED BY, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION."

DECISIONS OF THE UNITED STATES COURT OF CLAIMS AND OF THIS OFFICE HAVE CONSISTENTLY HELD THAT RECOVERY OF BACK PAY FOR A PERIOD OF WRONGFUL SEPARATION REQUIRES A SHOWING THAT THE EMPLOYEE WAS READY, WILLING, AND ABLE TO PERFORM HIS JOB DURING THE PERIOD OF SEPARATION. ARMAND V UNITED STATES, 136 CT. CL. 339; LECH V UNITED STATES, 187 CT. CL. 471; 38 COMP. GEN. 556 (1959). SEE, ALSO, B-147720 (DECEMBER 19, 1961); CF. B-147720 (FEBRUARY 5, 1962); COPIES ENCLOSED.

WITH RESPECT TO THE EVIDENCE REQUIRED, IT IS THE ESTABLISHED POLICY OF THIS OFFICE THAT WHERE STATEMENTS AS TO THE ABILITY, FITNESS, AND AVAILABILITY OF AN EMPLOYEE FOR DUTY MADE BY THE ADMINISTRATIVE AGENCY CONCERNED AND BY THE EMPLOYEE ARE CONFLICTING WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY. B-148792 (NOVEMBER 3, 1967), B 160200 (APRIL 6, 1967), COPIES ENCLOSED.

ON BEHALF OF YOUR CLIENT, YOU HAVE FURNISHED THE POST OFFICE DEPARTMENT WITH A STATEMENT (BY LETTER OF JUNE 2, 1970) THAT MR. ROBINSON "WOULD HAVE WORKED A TOTAL OF 2,320 HOURS DURING THE 29 PAY PERIODS FOLLOWING HIS DATE OF DISCHARGE." IN OTHER TERMS, IT IS YOUR CONTENTION THAT MR. ROBINSON WOULD HAVE BEEN AVAILABLE FOR WORK ON EVERY SCHEDULED WORKDAY AND HOLIDAY DURING THE PERIOD IN QUESTION. HOWEVER, IT IS THE OPINION OF THE POSTMASTER, WHICH YOU EVIDENTLY DO NOT ACCEPT, THAT MR. ROBINSON COULD NOT HAVE BEEN EXPECTED TO HAVE WORKED "MORE THAN 50 HOURS AND PROBABLY WOULD HAVE WORKED FEWER THAN 20." YOUR LETTER PRESENTS NO EXPLANATION OF THE CLAIM ON BEHALF OF MR. ROBINSON THAT HE WOULD HAVE WORKED EVERY DAY HAD HE NOT BEEN DISCHARGED. THE ONLY REASON YOU PRESENT FOR HIS FAILURE TO WORK IS THAT HE WAS PREVENTED FROM DOING SO BY THE AGENCY'S APPEALS OF CIVIL SERVICE COMMISSION DECISIONS ON THE ADVERSE ACTION PROCEEDING, WHICH DELAYED MR. ROBINSON'S REINSTATEMENT.

IN THE ABSENCE OF ANY OTHER EVIDENCE TO SUPPORT THE EMPLOYEE'S CLAIM AND IN LIGHT OF OUR POLICY OF RELIANCE ON THE JUDGMENT OF AGENCY OFFICIALS, WE FIND NO REASON TO REVERSE THE ACTION OF OUR CLAIMS DIVISION.

AS TO MR. ROBINSON'S RIGHTS WITH RESPECT TO ADVERSE ACTIONS INITIATED SUBSEQUENT TO THAT WITH WHICH THIS APPEAL IS CONCERNED, WE HAVE NO INFORMATION CONCERNING THESE AND ARE UNABLE TO ADVISE YOU FURTHER WITH RESPECT TO THEM AT THIS TIME.