B-241337, Feb 21, 1991

B-241337, Feb 21, 1991

CIVILIAN PERSONNEL - Leaves Of Absence - Annual leave - Eligibility - Intermittent employment CIVILIAN PERSONNEL - Leaves Of Absence - Sick leave - Eligibility - Intermittent employment DIGEST: 1. Civilian motor vehicle operators, who were hired by the Army as intermittent employees to provide transport support for Ranger training classes, claim the leave benefits of part-time employees on the basis of work schedules that the Army provided to them in advance, contending that their work was thereby regularly scheduled. The claims may not be allowed since the claimants did not produce sufficient evidence to counter the agency's determinations that the work schedules were tentative only. Therefore, they did not work regularly scheduled tours of duty to qualify them as part-time employees. The disallowance of their claims is affirmed. 2. On appeal of the GAO disallowance of their claims, Army employees contend that their claims should be allowed because the Claims Group allowed a claim presented by an employee who performed work under similar circumstances. Their claims may not be allowed on that basis since the Claims Group's individual settlements have no effect as precedent for Comptroller General decisions, and their claims are not otherwise allowable under the applicable statutes and regulations.

James F. Daniels, et al. - Intermittent Employment:

Four civilian motor vehicle operators, /1/ who were hired by the Department of the Army as intermittent employees, appeal our Claims Group's disallowance of their claims for retroactive lump-sum payments for annual and sick leave as part-time employees. The settlements are sustained since the employees have not established any material mistake of law or fact in their settlements.

BACKGROUND

Four motor vehicle operators, hired by the Department of the Army during the early 1980's to provide transportation support for military personnel undergoing Ranger training at Eglin Air Force Base, Florida, appealed our Claims Group's disallowance of their claims for retroactive lump-sum payments of sick leave and annual leave. The claims were presented on the theory that the claimants performed their duties as part-time employees. While they have provided no documentary evidence relating to the performance of their specific duties, the employees contend that there was an agency practice of publishing class schedules and providing driver schedules in advance. The agency provided an administrative report containing Ranger class schedules, drivers' duties, work schedules, historical background, and Time and Attendance Reports. The agency explains that the work schedules were not intended as firm duty hours. The ranger training mission requires transportation support 24 hours per day, 7 days per week, at sporadic times with various numbers of drivers, involving long waits after the students reach the training site. Continuous changes occur during the training cycle due to the availability of ranges, accidents, weather, lost students, and air support. Transportation support varies based on the number of drivers, time/days required, as well as the size of each class. Because of the unpredictability of the mission and the sporadic nature of driver requirements, the employees were briefed when hired that they would have no prescheduled tours of duty. Rather, they would be on-call, and there would be no guarantee of hours. As a result, the work schedules that were provided to the employees were considered to be "tentative."

The Claims Group found that while the record does indicate that their work was scheduled sometime in advance, the submitted schedules cover just one weekend and document prescheduling for part of just one week. Further, the schedules were not always adhered to exactly as written. Therefore, the requirement that the employees' work be scheduled in advance of the pay period, with work at some time during each administrative workweek, for more than two consecutive pay periods was not met.

On appeal, the employees reiterate their position that their work was prescheduled, and further contend that their claims should be allowed because the Claims Group allowed a similar claim of Mr. Kenneth V. Horton, /2/ who performed duties at the Ranger camp during the same period under similar circumstances.

OPINION

The law requires that an employee work "an established regular tour of duty during the administrative workweek" to be entitled to leave benefits. 5 U.S.C. Sec. 6301(2)(B)(ii) (1988). "Intermittent employment," which contemplates service "without a regularly scheduled tour of duty," must be changed to part-time when an agency schedules an intermittent employee in advance of pay periods to work at some time during each administrative week for more than two consecutive pay periods. See Federal Personnel Manual, ch. 340, Sec. 4-1c (Inst. 321, April 3, 1985); 5 C.F.R. Secs. 610.102(g) and (h) (1986). As a result of such a conversion, the employee would be eligible for leave benefits.

However, the fact that an employee establishes a regular pattern of work and actually works 40 hours a week does not provide a basis for conversion.

See Russel C. Washington, Sr., et al., B-229170, Sept. 9, 1988; Department of Energy Consultants, B-216708, Mar. 29, 1985. To prevail on claims for retroactive lump-sum leave payments based on an alleged change of status from intermittent to part-time employee, claimants must produce evidence sufficient to counter the administrative determination that he or she was not provided specific duty schedules in advance. Frank J. Robichau, Jr., B-230740, Nov. 29, 1988; James P. Wendel, B-206035, Apr. 26, 1982; John W. Matrau, et al., B-191915, Sept. 29, 1978. For example, in John W. Matrau, et al., supra., the claimants based their contention that they did actually work prescheduled tours of duty upon the fact that they were given each Saturday a schedule for the following week. Yet, the agency stressed that these schedules were tentative and varied from week to week. Claimants were informed that these tentative work schedules were subject to change, and in fact the schedules did change frequently during each week. We held that such scheduling did not constitute an "administratively prescribed regular tour of duty in advance" so as to justify a change in status from intermittent to regular part-time worker. See also Helen M. Jew, B-230840, Aug. 18, 1988, and decisions cited.

Similarly, in this case the history of the transportation support function, the unpredictability of the drivers' requirements due to the progress of the individual Ranger classes, the weather, and the availability of the equipment, and the notice provided the employees when they were hired support the agency's position that the work schedules were tentative rather than fixed. The record provides a reasonable basis for the agency's determination that the employees did not perform regularly scheduled tours of duty which would require a conversion to part-time. The claimants have presented no additional evidence to counter the agency's determination.

Regarding the claimants' reference to the settlement of Mr. Horton's claim, we note that settlements of the Claims Group are made on the basis of the particular facts as supported by the evidence presented in each case. The Claims Group settled Mr. Horton's claim on the basis of documents he presented that related to the performance of his specific duties, including among other things the truck and other equipment requirements for specific Ranger training classes, driver work schedules, and the employee's personal records of hours scheduled and worked. that evidence the Claims Group determined that the agency had in fact scheduled Mr. Horton in advance to work for the minimum time for more than two consecutive pay periods, necessitating his conversion to part-time status.

In the present case, the employees did not present sufficient evidence to prove that their work had similarly been prescheduled for more than two consecutive pay periods. However, even if these employees were scheduled to work in advance much as was Mr. Horton, this would not be sufficient. As we have held in decisions subsequent to the adjudication of Mr. Horton's claim, a tentative work schedule which is subject to change, and which in fact does change frequently during each week, does not meet the statutory requirement of an established regular tour of duty. See Helen M. Jew, 67 Comp.Gen. 570 (1988), and Frank J. Robichau, Jr., B-230740, Nov. 29, 1988. Clearly, these employees did not have established regular hours of duty but rather were given tentative schedules of work hours which frequently were changed.

Accordingly, the disallowance of the employees' claims is sustained.

/1/ James F. Daniels, Doyle H. Adkison, Billy J. Lewis, and Charles W. Light. The claims were initially disallowed by their hiring agency, Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia.

/2/ Settlement Z-2865167, Mar. 15, 1988, reconsideration of settlement Z- 2865167, Dec. 22, 1987.