Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Bronx, New York
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/02/2018
Date
The claimant seeks to file a claim with the U.S. Office of Personnel Management (OPM) for the “return of 4hrs pay ($95.39),” which he states was “unjustly taken from [him]” on April 5, 2016, while employed with the U.S. Army Cadet Command, Department of the Army, in Bronx, New York. He retired from Federal civilian service effective January 31, 2017. For the reasons discussed herein, the claim is denied.
On April 5, 2016, the claimant states that after receiving a telephone call while at work from his spouse informing him that she had been locked out of their residence, he immediately left the office on or around 11:30 a.m. without prior approval from either the first- or second-level supervisors who were not present in the office at the time. He asserts he did not return to the office in order to provide care to his spouse who was ill. The following day, he returned to the office and submitted OPM Form 71, Request for Leave or Approved Absence, requesting to use four hours of accrued sick leave to cover his 12:00 to 4:00 p.m. absence from the previous day. The claimant states that despite his having “71 hrs of leave time and 51 hrs of sick time,” his request was denied by his first-level supervisor, who provided the following reason for the disapproval: “I was out of office yesterday, but request wasn’t given to [the Professor of Military Science (PMS), i.e., the second-level supervisor] nor was I called.” The claimant’s four-hour absence on April 5, 2016, was subsequently coded as leave without pay (LWOP), as confirmed by the leave and earnings statement he submitted to OPM for the pay period ending April 16, 2016.
Although initially placed in a LWOP status for the four hour absence on April 5, 2016, the claimant’s time and attendance report was later amended to charge those hours as absence without official leave (AWOL). The agency explains in its March 1, 2018, decision:
…my office determined you are not entitled to receive any reimbursement of pay for the hours you were away from your designated place of duty without proper authorization. Although you may have been charged LWOP incorrectly, management does have the authority to go back and make the proper corrections to your time and attendance.
Under our direction, your supervisor was instructed to correct your time and attendance record to reflect [AWOL] vice [LWOP]. This was based on the fact that you were absent from your assigned place of duty. Your absence was then not authorized and your leave request had been denied by your supervisor.
The claimant requests the “return” of four hours of pay for his time in a non-pay status but provides no further explanation of the remedy he seeks. In general, Federal employees are compensated for hours of work performed, or alternatively when annual, sick, or other paid leave options are available and approved for use. Because neither the claimant nor the agency dispute the fact that he was absent from the office and not performing work during the four hours at issue, we assume the claimant seeks to convert the AWOL to annual, sick, or other paid leave options allowing for compensation. Since his completed OPM Form 71 shows he initially requested but was denied sick leave to cover the four hour absence, we conclude he is requesting that OPM direct his agency to convert the AWOL to sick leave. In support of his request, the claimant submitted a November 16, 2016, letter from his second-level supervisor at the time. Requesting the “return [of] the 4 hours that were unfairly taken from [the claimant],” the second-level supervisor states in her letter:
I was unaware, until recently, that Mr. Deravin was penalized for responding to an emergency situation. While we made every effort to institute a policy that informed leadership about employee absences well in advance, an emergency is not predictable, nor is it an event the employee should be reprimanded for responding to. Had I been available immediately after Mr. Deravin received the phone call, I would have approved his departure on the spot.
In an April 20, 2018, email provided as part of the agency’s administrative report, the claimant’s first-level supervisor at the time explains:
…bottom line, I was not present the day he left the office, nor was the head of the program [(the second-level supervisor)]. Mr Deravin made no effort to contact me [in accordance with] his counseling [1]. It was later revealed that he left to go to a Yankees game. However, [the second-level supervisor] supported the fact that he was being coded as [LWOP] for that time he was not present at work.
* * * *
Mr Deravin retired in January 2017. He then filed a claim to recoup the money, and as part of it [the second-level supervisor] wrote a letter of support, which is contradictory to her position when she was the [Officer in Charge] of the program; only this time Mr Deravin claimed his spouse was locked out of their residence.
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 general administration of agency personnel including, as discussed in 5 U.S.C. 7106(a)(2)(A), 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.” 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. Therefore, the charging of AWOL is not reviewable under OPM’s administrative claims process. Because the claimant had been placed in an AWOL status for the four hours at issue on April 5, 2016, no compensation is due. See OPM File Number 15-0009, dated September 22, 2016.
Even assuming, arguendo, that AWOL was retroactively converted to sick leave in the claimant’s situation, there would be no compensation available. Upon his January 31, 2017, retirement, any unused sick leave under the Federal Employees Retirement System he had been covered by would have been applied in the calculation of total creditable service for annuity compensation purposes. In other words, he may not be paid for sick leave that no longer exists in his account. Therefore, his claim is denied for failure to state a claim for which relief may be granted.
OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. 5 CFR 178.105; Jones and Short, B-205282, June 15, 1982. Where the agency’s determination is reasonable, as in this instance, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995.
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.
___________________________
[1] The claimant's March 17, 2015, counseling letter states in relevant part:
Any absence must be approved in advance; do not disappear and then let me know you are gone-tell me where you are going, how long you will be gone, and then submit the required leave form (regular or sick leave) once you return.
Should you need to take leave for an extenuating circumstance, the leave request is required to be submitted on the first day back to the office.