Claim for Backpay

B-197981: May 8, 1981

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A former Federal employee appealed a Claims Group denial of her claim for backpay and payment for unused annual and sick leave. She was terminated from her employment because of a dispute with her supervisor. Following her termination, the former employee filed a formal grievance with her agency which resulted in a final decision that the removal action was justified. She also filed a grievance with the Civil Service Commission. They declined to hear her case since their authority extended only to hear appeals from members of the competitive service or an employee with veteran preference. She met neither requirement as she was a nonveteran serving in an excepted position. The former employee subsequently filed an application for disability retirement which was approved and made effective as of her removal date. The claimant sought backpay and payment for accrued annual and sick leave on the basis that her removal violated her statutory protection and civil service regulations. As a member of the excepted service, she was not an employee subject to the statutory protections which she cited. Even if she were, matters concerning a violation of her statutory rights would be within the jurisdiction of the Office of Personnel Management and not GAO. GAO was bound to accept the agency determination that the claimant's removal was proper. Since the claimant received a disability retirement, she could not receive backpay even if her removal was determined to be defective. There was no basis to alter the action of the agency which paid the claimant a lump-sum amount for annual leave but did not pay her sick leave. The claim was denied.

B-197981, MAY 8, 1981

DIGEST: EMPLOYEE, A NONVETERAN IN THE EXCEPTED SERVICE, ALLEGES THAT HER REMOVAL IN 1977 WAS SUBSTANTIVELY AND PROCEDURALLY DEFECTIVE AND SHE SEEKS BACK PAY AND PAYMENT FOR ACCRUED ANNUAL AND SICK LEAVE. ALLEGATIONS REGARDING DEFECTIVENESS OF REMOVAL ARE NOT WITHIN JURISDICTION OF THIS OFFICE BUT WERE MATTERS FOR EMPLOYING AGENCY AND CIVIL SERVICE COMMISSION. THEREFORE, FOR PURPOSES OF ADJUDICATING CLAIM, REMOVAL MUST BE DEEMED JUSTIFIABLE WHICH PRECLUDES BACK PAY AND RECREDITING OF ANNUAL OR SICK LEAVE. EMPLOYEE RECEIVED LUMP-SUM PAYMENT FOR ANNUAL LEAVE AT SEPARATION PURSUANT TO LAW AND SICK LEAVE TO HER CREDIT WAS USED IN DETERMINING HER DISABILITY RETIREMENT ANNUITY.

__________ - CLAIM FOR BACK PAY:

__________ , THROUGH HER ATTORNEY, APPEALS THE CLAIMS GROUP'S DENIAL OF HER CLAIM FOR BACK PAY AND PAYMENT FOR UNUSED ANNUAL AND SICK LEAVE. FOR THE FOLLOWING REASONS, WE AFFIRM THE ACTION OF THE CLAIMS GROUP.

ON FEBRUARY 10, 1977, __________ , A MEDICAL TECHNICIAN AT THE UNITED STATES SOLDIERS' AND AIRMEN'S HOME, WASHINGTON, D. C., HAD A DISPUTE WITH HER SUPERVISOR CONCERNING HER IMPROPER HANDLING OF LABORATORY CULTURES. AS A RESULT OF HER INAPPROPRIATE ACTIONS IN CONNECTION WITH THIS INCIDENT, __________ RECEIVED A "NOTICE OF PROPOSED REMOVAL" ON FEBRUARY 16, 1977.

TO CONTEST HER PROPOSED REMOVAL, __________ FOLLOWED AGENCY PROCEDURE AND HAD A HEARING BEFORE THE PERSONNEL OFFICE. THIS WAS UNSUCCESSFUL AND SHE WAS TERMINATED ON MARCH 14, 1977.

FOLLOWING HER TERMINATION, __________ FILED A FORMAL GRIEVANCE WITH HER AGENCY WHICH RESULTED IN A FINAL DECISION BY THE GOVERNOR OF THE HOME ON JANUARY 10, 1978, THAT THE REMOVAL ACTION WAS JUSTIFIED. ALSO, DURING THE PENDENCY OF THE GRIEVANCE, __________ FILED AN APPEAL WITH THE CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) CONTESTING HER REMOVAL. THE COMMISSION DECLINED TO HEAR THE CASE SINCE THEIR AUTHORITY EXTENDED ONLY TO HEAR APPEALS FROM MEMBERS OF THE COMPETITIVE SERVICE OR AN EMPLOYEE WITH VETERAN PREFERENCE. __________ MET NEITHER REQUIREMENT AS SHE WAS A NONVETERAN SERVING IN AN EXCEPTED POSITION.

TWO DAYS AFTER THE GRIEVANCE DECISION, THE CLAIMANT FILED AN ADDITIONAL APPEAL WITH THE CIVIL SERVICE COMMISSION APPARENTLY CONTESTING BOTH HER REMOVAL AND THE GRIEVANCE PROCEDURE. THE COMMISSION REITERATED ITS PREVIOUS DECISION AND ALSO POINTED OUT THAT THE COMMISSION DID NOT REVIEW AN AGENCY'S ACTION UNDER A GRIEVANCE AT AN EMPLOYEE'S REQUEST. CONCURRENTLY WITH THIS APPEAL TO THE COMMISSION, THE CLAIMANT FILED AN APPLICATION FOR DISABILITY RETIREMENT WHICH WAS SUBSEQUENTLY APPROVED AND MADE EFFECTIVE AS OF HER REMOVAL DATE.

IN THIS ACTION, THE CLAIMANT IS SEEKING BACK PAY AND PAYMENT FOR ACCRUED ANNUAL AND SICK LEAVE. THE BASIS OF THE CLAIM IS THAT HER REMOVAL VIOLATED THE STATUTORY PROTECTIONS IN 5 U.S.C. SEC. 7501 (1976) AS WELL AS IMPLEMENTING CIVIL SERVICE REGULATIONS. SHE ALLEGES THAT THE AGENCY'S REMOVAL ACTION IS DEFECTIVE IN THAT IT WAS CONTRARY TO THE RECOMMENDATIONS OF THE GRIEVANCE EXAMINER AND BECAUSE SHE WAS NOT GIVEN A FITNESS FOR DUTY EXAMINATION PRIOR TO HER REMOVAL.

THE STATUTORY PROTECTIONS IN 5 U.S.C. SEC. 7501 (1976) ARE SUBSTANTIVE AND PROCEDURAL REQUIREMENTS WHICH MUST BE FOLLOWED PRIOR TO SUSPENDING OR REMOVING AN EMPLOYEE IN THE COMPETITIVE SERVICE. __________ , AS A MEMBER OF THE EXCEPTED SERVICE, IS NOT AN EMPLOYEE SUBJECT TO THESE STATUTORY PROTECTIONS. SEE 5 U.S.C. SECS. 2102 AND 2103 (1977) FOR THE DEFINITION OF COMPETITIVE AND EXCEPTED SERVICE. MOREOVER, EVEN IF SHE WERE WITHIN THE CLASS OF PROTECTED EMPLOYEES, ANY MATTERS CONCERNING A VIOLATION OF HER STATUTORY RIGHTS WOULD BE WITHIN THE JURISDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT AND NOT THIS OFFICE.

CONCERNING HER ALLEGATIONS RELATIVE TO THE GRIEVANCE, THIS OFFICE AGAIN HAS NO JURISDICTION TO INQUIRE INTO SUCH MATTERS WHICH LIE WITHIN THE JURISDICTION OF THE EMPLOYING AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT. SEE B-173255, JULY 14, 1971; AND 5 C.F.R. SECS. 771.118 AND 771.119 (1977).

THUS, FOR PURPOSES OF ADJUDICATING THIS CLAIM, WE ARE BOUND TO ACCEPT THE AGENCY DETERMINATION THAT THE CLAIMANT'S REMOVAL WAS PROPER. THEREFORE, IT IS CLEAR THAT SHE IS NOT ENTITLED TO BACK PAY. FOR BACK PAY TO BE AWARDED, THERE MUST BE AN ADMINISTRATIVE DETERMINATION BY AN APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION THAT THE EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION CAUSING A LOSS OF PAY. 5 U.S.C. SEC. 5596(B). FURTHERMORE, SINCE THE CLAIMANT WAS DETERMINED TO BE TOTALLY INCAPACITATED AND RECEIVED A DISABILITY RETIREMENT, SHE COULD NOT RECEIVE BACK PAY EVEN IF APPROPRIATE AUTHORITY WERE TO DETERMINE THAT HER REMOVAL WAS SUBSTANTIVELY OR PROCEDURALLY DEFECTIVE. AN EMPLOYEE MUST BE READY, WILLING, AND ABLE TO PERFORM HER DUTIES TO RECEIVE BACK PAY. SEE __________V. UNITED STATES, 340 F.2D 352, 356 (CT.CL. 1965), IN WHICH THE COURT HELD THAT PLAINTIFF'S RECEIPT OF TOTAL DISABILITY COMPENSATION FROM THE DATE OF HIS ERRONEOUS REMOVAL PRECLUDED A FINDING THAT HE WOULD HAVE BEEN ABLE TO RESUME WORK DURING ANY PART OF THE PERIOD FOLLOWING HIS SEPARATION. SEE ALSO __________ V. UNITED STATES, 198 CT.CL. 489, 493 (1972).

AS TO THE CLAIM FOR PAYMENT OF ACCRUED ANNUAL AND SICK LEAVE, THERE IS NO BASIS FOR ALTERING THE ACTION TAKEN BY THE AGENCY WHICH PAID THE CLAIMANT A LUMP-SUM AMOUNT FOR 231 HOURS OF ACCRUED ANNUAL LEAVE BUT DID NOT PAY HER FOR HER ACCRUED SICK LEAVE. UPON SEPARATION AN EMPLOYEE IS ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE. 5 U.S.C. SEC. 5551 (1976). AN EMPLOYEE, HOWEVER, MAY NOT RECEIVE A LUMP SUM PAYMENT FOR ACCRUED SICK LEAVE UPON SEPARATION. B-162628, DECEMBER 27, 1976. HOWEVER, THE SICK LEAVE TO __________ CREDIT AT THE DATE OF HER SEPARATION WAS USED TO COMPUTE HER ANNUITY. SEE 5 C.F.R. SEC. 831.302.

FOR THE REASONS STATED ABOVE, THE CLAIM IS DENIED.

 

 

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