Washington, DC

U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



09/22/2016

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Date

The claimant is a former employee of the Department of Army at Fort Leonard Wood, Missouri.  In his initial claim request dated December 5, 2011, and received on December 9, 2011,[1] as amended by several later supplemental filings, the claimant asserts he is owed 93 hours of pay for time that was charged to a nonpay status and the intervening holidays for the period September 1, 2011, through his resignation on November 5, 2011, and pay for leave he believes should have accrued while in a nonpay status.  In a subsequent series of letters he further expands his requests and complaints to include, in his letter dated March 31, 2012, “an investigation concerning [his] release from federal service;” in his letter dated April 21, 2012, that he be "compensated for time worked and time off during FMLA" and that he "dispute[s] [his] debt to the DoD pending an investigation;" in his letter dated July 29, 2012, reinstatement and relocation to another position, an investigation of allegations of improprieties he makes against former coworkers, and "charges filed" against his former work leader; and in his letter dated October 21, 2012, that he "provided paperwork for COBRA but was never contacted and denied insurance."  We received additional information from the agency on August 12, 2015, and September 9, 2015.  For the reasons discussed herein, the claim is denied in its entirety.

Pay for time in a nonpay status

The claimant was charged AWOL (absent without leave) on September 1-2, 2011, for failure to report to his designated work site.[2]  The agency states his time card was later amended to reflect two hours of work each day, for which he was paid on February 9, 2012.  This is corroborated by the “T&A timecard” submitted by the agency for the pay period ending September 10, 2011, showing the claimant’s time was accordingly changed for those two days.  The claimant asserts he was performing duties at his home on those days and "completed an 8 hour shift," although his supervisor stated he did not have prior approval to deviate from his designated work site.  The claimant requests compensation for the hours he was charged AWOL.  

The claims jurisdiction authority of OPM under section 3702(a)(2) of title 31, United States Code (U.S.C.), is limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining an employee's entitlement to compensation or leave.  It does not extend to intervening in management's right under 5 U.S.C. § 302 to take final actions on matters pertaining to the employment, direction, and administration of agency personnel including, as discussed in 5 U.S.C. § 7106, to "hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees." This includes the basic supervisory functions of assigning work and defining the work site, determining if the work has been properly completed, and taking performance-based and disciplinary actions based on that determination.  Although some management actions may be subject to an agency's administrative or negotiated grievance procedures or the appellate processes of other external authorities, they are not reviewable by OPM under 31 U.S.C. § 3702(a)(2).  Since the claimant had been placed in a nonpay status for the hours in question on September 1-2, 2011, no compensation is due, and this portion of the claim is denied.

In addition, the claimant requests compensation for eight hours of annual leave on September 6, 2011.  The claimant had requested eight hours of "accrued annual leave" in writing by leave request signed by him that same day, but it was denied by his supervisor, and the claimant was charged AWOL.  As noted above, the charging of AWOL is not reviewable under OPM's administrative claims process.  Further, even if the AWOL were retroactively changed to annual leave, there is no compensation available to the claimant.  Upon his  resignation from his position effective November 5, 2011, he would have been paid for any annual leave balance in his account in a lump sum or, if there was a debt against his account, any monies owed for annual leave would have been applied toward that debt.  In other words, he may not be paid for annual leave that no longer exists in his account.  Therefore, this portion of the claim is denied for failure to state a claim for which relief can be granted.

The claimant also requests compensation for three hours spent taking “HVAC certification testing” on October 4, 2011, during which time he was in an AWOL status.  The claimant provided a copy of a leave request signed by him on September 8, 2011, requesting LWOP for the period September 27, 2011-October 7, 2011, which he reports was denied.  He provided no documentation either indicating where this testing was conducted or showing that he was instructed by his supervisor or other agency officials to take this test while he was in an AWOL status.  Since the employee had been placed in a nonpay status for the hours in question on October 4, 2011, no compensation is due, and this portion of the claim is denied.

Although the claimant requests compensation for "time off during FMLA,"[3] it is unclear if he was ever approved for leave under FMLA.  Although the claimant states he submitted the required documentation for leave approval under FMLA, the record shows it was returned to him because it was incomplete and did not meet the FMLA criteria.  Further, the final agency decision on his claim, which was conveyed to him on or about November 4, 2014, states that his “request for [FMLA] was not approved because [he] did not provide adequate medical documentation to support [his] request.”  Regardless, the claimant misconstrues the entitlement provided by FMLA.  This statute entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons.  Thus, it provides for the approval of unpaid leave for qualifying FMLA purposes such as a serious medical condition, but does not mandate compensation for the associated time off.  An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM's regulations for using annual and sick leave, for any unpaid leave under the FMLA.  If FMLA leave had been granted, payment for any such time off would have been limited to whatever amount of annual and sick leave the claimant elected to substitute for approved FMLA leave without pay.  As noted above, any available annual leave would have been paid to him in a lump-sum payment upon his resignation or applied to any existing debt.  Further, copies of his LESs provided with his claim show that he had an advanced sick leave balance on his account when he resigned.  Since the value of any advanced sick leave on an employee's account when he or she leaves an agency's rolls must be recovered, either from other monies due or as a debt, the claimant had no sick leave available for use that would not otherwise have to be repaid.  Therefore, no compensation would be due even if the claimant had been approved for leave under FMLA, and this portion of the claim is denied for failure to state a claim for which relief can be granted.

Pay for intervening holidays while in a nonpay status

The claimant requests to be paid for holidays on September 5, 2011, and October 10, 2011, during the period he was in a nonpay status.  The claimant was charged six hours AWOL on Friday, September 2, 2011, and was in a work status for two hours.  He was charged eight hours AWOL on Tuesday, September 6, 2011.  He requests to be paid for the intervening holiday on Monday, September 5, 2011. 

Guidance provided on OPM's website states: "Employees must be in a pay status or a paid time off status (i.e., leave, compensatory time off, compensatory time off for travel, or credit hours) on their scheduled workdays either before or after a holiday in order to be entitled to their regular pay for that day.  Employees who are in a non-pay status for the workdays immediately before and after a holiday may not receive compensation for that holiday."  The established rule is that, in the absence of a statute providing specifically to the contrary, an employee who is in a nonpay status immediately preceding and immediately following a holiday is not entitled to pay for the intervening holiday on which no service was performed.  U.S. GAO, B-187520, February 22, 1977.  Conversely, an employee in a pay status for either the workday preceding a holiday or the workday succeeding a holiday is entitled to straight-time pay for the holiday, without regard to whether he is in an authorized leave-without-pay status for the corresponding day immediately succeeding or preceding such holiday.  U.S. GAO, B-127474, March 2, 1977, Comp. Gen. 393.  The underlying assumption in paying an employee for the holiday is that the employee has been relieved or prevented from working on the holiday solely because of the occurrence of such holiday.  Thus, when an employee absents himself without leave both before and after a holiday, there is no presumption that he would have worked on the holiday if it had been a regular working day.[4]  U.S. GAO, B-186687, January 19, 1977.  However, in any given case where an employee is in a nonpay status for all or part of the workdays either preceding or following a holiday, consideration must be given to whether it can be reasonably presumed that the employee would  have worked on the holiday if it had been a regular working day.

The claimant was initially placed in an AWOL status for the entire workday on September 2, 2011, the workday immediately before the holiday on September 5, 2011, but his time card was later amended to include two hours of paid time.  The time card does not indicate the times for these two hours, and the basis for amending his time card is unexplained.  However, any presumption that the claimant held himself in readiness to work, and would have worked the following workday were it not a holiday, is undermined by the circumstances of his case.  Specifically, the claimant was initially placed on AWOL for the entire day on both September 1 and 2, 2011, because although he picked up and returned a government vehicle to drive to his designated job sites, he never reported to those job sites and the agency determined that he did not perform work on those days.  Further, the claimant was again in an AWOL status on September 6, 2011, the workday immediately after the holiday, and remained in that status until his resignation on November 5, 2011.  Therefore, there is no presumption that the claimant held himself in readiness to perform work after September 2, 2011, or would have worked on September 5, 2011, were it not a holiday.  As a result, he is not entitled to pay for the holiday on September 5, 2011.  This portion of his claim is accordingly denied. 

In addition, the claimant requests to be paid for the holiday on October 10, 2011.  He states that his "last day of work was 2 Sept 2011 but was counted as AWOL during the entire period up until [his] resignation."  He requests to be paid for the intervening holiday on October 10, 2011.  Since the claimant was in a nonpay status on Friday, October 7, 2011, and Tuesday, October 11, 2011, the workdays immediately before and after the holiday, he is not entitled for pay for the holiday on October 10, 2011.  In accordance with the aforementioned OPM guidance and cited Comptroller General decisions, this portion of his claim is denied.

Pay for leave while in a nonpay status

The claimant requests to be paid for annual and sick leave he believes he should have accrued from the pay period ending September 24, 2011, through the pay period ending November 5, 2011.  The claimant asserts in his February 5, 2012, letter that this time, which was initially charged to AWOL, was later converted to LWOP, “which means that [he] is entitled to wages and benefits for those periods.” 

The relevant regulatory guidance contained in 5 CFR 630.202 states:  "A full-time employee earns leave during each full biweekly pay period while in a pay status or in a combination of a pay status and a nonpay status."  A “nonpay status” is status during which the employee is not working and is not receiving pay or paid time off.  Both LWOP and AWOL are nonpay statuses.  Therefore, because the claimant was in a nonpay status for the period in question, no leave was earned and no associated compensation due, and this portion of the claim is denied. 

Debt dispute

The claimant states that he disputes his “debt to the DoD pending an investigation.”  However, he does not specifically challenge the underlying basis for the debt or provide documentation to support any such challenge.  The burden is upon the claimant to establish the timeliness of the claim, the liability of the United States, and the claimant’s right to payment.  The settlement of claims is based upon the written record only, which will include the submissions by the claimant and the agency.  See 5 CFR 178.105. 

By letter dated December 12, 2012, the claimant’s payroll provider, the Defense Finance and Accounting Service (DFAS), explained to the claimant that a debt of $228.16 was owed for “overpayment due to non-payment of employees health benefits premiums” for the pay periods ending September 24, 2011 ($59.54) and November 5, 2011 ($168.62), and a debt of $556.56 was owed for “a negative sick leave balance.”  The claimant has provided no documentation showing that the health benefit premiums were deducted for those pay periods, or that he did not have a negative sick leave balance.  We note that his LESs for the period in question show that he had an advanced sick leave balance (thereby resulting in a negative sick leave balance upon his resignation).  Advanced leave is leave that is borrowed from the employee’s future leave accrual, i.e., the employee is paid for leave that has not yet been earned.  After the employee has returned to work after the period of sick leave, further sick leave accrual is offset until the advanced leave balance has been exhausted.  If employment is terminated before the advanced leave balance has been exhausted, the pay that was received for the advanced sick leave is recovered as a debt.

Since there is no documentation contained in the file indicating that the debt collection by DFAS was improper, this portion of the claim is denied.

Other issues

The claimant requests an investigation concerning his release from the Federal service, reinstatement and relocation to another position, an investigation of allegations of improprieties he makes against former coworkers, and "charges filed" against his former work leader.  OPM's claims adjudication authority under 31 U.S.C. § 3702(a)(2) is limited to consideration of compensation and leave disputes.  OPM has no authority to direct the agency to reinstate and/or relocate the claimant or otherwise investigate the circumstances of his resignation from his position, nor does its authority under 31 U.S.C. § 3702(a)(2) extend to investigating or taking action against other Federal employees at a claimant’s behest.

The claimant does not specifically request COBRA[5] coverage in his claim but states in several of his filings that he “applied for COBRA insurance and was not approved.”  COBRA allows employees and their immediate family members to stay on an employer-sponsored health plan under certain circumstances.  State and local governments fall under COBRA but Federal plans do not, although there are similar provisions called "temporary continuation of coverage" under the Federal Employees Health Benefits Program.  However, health insurance coverage is not considered “compensation” within the coverage of 31 U.S.C. § 3702(a)(2).  Therefore, any claim for such coverage is denied for lack of jurisdiction.  

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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