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


07/22/2014

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Date

The claimant, formerly employed by the Social Security Administration (SSA), asks OPM to “resolve a problem” for which she states she has “exhausted all [her] administrative appeal options."  We received the request on May 13, 2014, and information from the agency at our request on May 16, 2014.  For the reasons discussed herein, the claim is denied.

The claimant asserts she was granted[1] advanced leave and, by the end of 2011, had approximately 60 hours of advanced leave.  Her father, who worked for the Federal Aviation Administration, donated 50 hours of leave to her, but the timekeeper in her branch “did not credit the time to [her] leave balance."  She further asserts she had surgery in May 2012 and asked the donated leave be used to “off-set [her] leave needs" but “[m]anagement failed to accomplish this task as well,” and the issue remained unresolved when she left SSA in January 2013 and her “account was passed on to Treasury collection.”  The claimant asserts:  “I have been told that the donated leave was returned to my father, which is impossible because he retired prior to my separation date.”   She alleges that despite requesting several times, she has not been shown timesheets to support the Treasury debt, no documentation to support return of the donated leave, and that her manager’s input on this matter "was disregarded.”  The claimant states:

I am left with only two options file a pay claim in the amount of the debt plus penalties or file a lawsuit for failure of the administrative appeal process, withholding compensation, constructive termination, and infringement of my employee rights… I could also include my father in the claim, who was cheated out of 50 hours of pay.

OPM settles Federal civilian employee compensation and leave claims under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, Code of Federal Regulations (CFR).  Section 178.102(a) of 5 CFR indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication.  The claimant is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations.  See 5 CFR 178.104.  The information provided by the claimant with her request does not show she has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that she has received such a decision; i.e., SSA’s Office of Personnel, Center for Personnel Policy and Staffing.  Rather, she presented correspondence with the SSA’s payroll office contesting the aforementioned debt.  Nevertheless, we may render a decision on her claim based on lack of jurisdiction.

Section 7121(a)(1) of title 5, U. S. C., directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. § 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP.  See 5 CFR 178.101(b).

The record shows the claimant occupied a bargaining unit position during the period of the claim.  The CBA between SSA and the American Federation of Government Employees covering the claimant during the period of the claim does not specifically exclude leave issues from the NGP (Article 24).  Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and OPM has no jurisdiction to adjudicate this claim or intervene in this matter.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant is no longer employed by SSA does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from her employment with SSA.

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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