Office of Merit Systems Oversight and Effectiveness

Date: October 23, 2001
File Number: [01-00524]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

Pursuant to 5 CFR § 178.102(b), the [agency] filed a claim on behalf of the claimant on September 5, 2001. We acknowledged receipt of this claim on September 7, 2001. The agency administrative report was received on September 24, 2001. The claimant contends that he is due back pay for a scheduled part-time workweek. For the reasons discussed herein, the claim is denied.

The claimant is a full-time career seasonal employee and, in accordance with his Statement of Conditions of Employment (employment agreement) form, he works 8 hours per day, 40 hours per week when he is in a pay status. He signed this employment agreement, which stated that the claimant would be placed in a nonwork, nonpay status during the periods that his services were not needed due to lack of work, lack of funds, weather conditions or other circumstances.

The claimant was initially scheduled 40 hours of training during the week of April 9-13, 2001. The agency cancelled four of the training days and the claimant attended training on April 10, 2001. The agency stated that the training period was reduced to one day due to lack of funds. The claimant seeks compensation for April 9 and April 11- 13; the period that the agency did not schedule the claimant to work or was not able to provide training.

The agency asserts that the claimant's tour of duty is 40 hours per week when in pay and duty status. This "full-time (seasonal)" appointment is an implied tour when the claimant is recalled to duty for extended periods of time. The agency contends that it has met its obligation to the Conditions of Employment by placing the claimant in a full-time pay status for 29 weeks from April 2000 to April 2001. During this time, the agency acknowledges that the local management recalled the claimant, via a SF-50, Notification of Personnel Action, for a short/non-continuous period of duty. The claimant was placed in a pay status, via his time and attendance report, and paid for the 8 hours that he attended training on April 10. However, the agency contends that they have no basis for compensating the claimant for the remainder of the workweek, when no work was performed and no training was conducted.

The Office of Personnel Management 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 agency's factual determination is reasonable, we will not substitute our judgement of that of the agency. See e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982.

Our review finds that the claimant understood the terms of his appointment and his work schedule as provided by the agency. The agency notified the claimant of the modification of the training schedule in advance. The claimant was paid for the one-day training. We concur with the agency that there is no basis for compensating the claimant for April 9 and April 11-13 because he did not attend training or perform work. The claim is denied.

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