Washington, DC
U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of the Interior
Atlanta, Georgia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/06/2022
Date
The claimant is a Federal civilian employee with the U.S. Marshalls Service, U.S. Department of Justice (DOJ). Prior to this appointment and during the claim period she was employed with the National Park Service (NPS), U.S. Department of the Interior (DOI) in Atlanta, Georgia. She seeks payment for unused compensatory time off at the overtime rate in effect when earned due to “exigency of the service” circumstances. [1] The U.S. Office of Personnel Management (OPM) received the claim request on April 12, 2021, and the agency administrative report (AAR) on April 15, 2022. For the reasons discussed herein, the claim is denied.
During her employment with DOI, the claimant encumbered the position of Supervisory Human Resources Specialist (ER/LR), GS-0201-13, an exempt position from the overtime pay provisions of the Fair Labor Standards Act (FLSA), and was credited with compensatory time off in lieu of FLSA overtime pay. The claimant states that in early March 2020, she made management aware that she had accepted a position with DOJ and her last day with the agency was set for June 20, 2020. However, as the claimant requested to take annual and restored annual leave for relocation purposes beginning on June 8, 2020, her last workday with her agency was June 5, 2020.
On June 4, 2020, the claimant emailed an agency payroll technician inquiring about payments for expired compensatory time off for pay periods (PP) 10 and 11, and payments for the remaining outstanding compensatory time off earned. Similarly, on June 5, 2020, she emailed the region’s Administrative Remedies Division about the same matter. In response to her inquiries, on June 5, 2020, she received an email from the HRO (i.e., her supervisor) explaining that per agency policy compensatory time was not automatically paid out for FLSA-exempt employees and would not be approved to be paid out as overtime. In addition, her supervisor instructed her to change her request for 80 hours of annual leave for June 7, 2020, to June 20, 2020, to reflect the use of compensatory time off. The supervisor explained that this would significantly reduce the claimant’s compensatory time off balance, allowing her to save her annual and restored annual leave which would transfer to her new agency.
Disagreeing with her supervisor’s explanation about the nonpayment of compensatory time off for FLSA-exempt employees and her instruction to use compensatory time instead of annual leave for her upcoming leave, the claimant did not make any changes to her leave request, stating in her response to her supervisor, “I prefer to leaving all matters as they are in that I have already prepared and verified my Time and Attendance to reflect the same.” The record shows that the claimant used 56 hours of restored annual leave from June 8, 2020, to June 16, 2020, 4.15 hours of restored annual leave and 3.45 hours of annual leave on June 17, 2020, and 16 hours of annual leave from June 18, 2020, to June 19, 2020. Upon the claimant’s transfer from DOI to DOJ, the balance of her unused compensatory time off was forfeited.
However, the claimant believes that she should receive payment for the forfeited hours of unused compensatory time off due to “exigency of the service” circumstances on the basis that she received approval for restoration of annual leave from leave year 2019 to leave year 2020 for the same reasons. [2] She describes the “exigent circumstances” considered for the restoration of her annual leave as “a shortage of personnel and time sensitive matters that required [her] to work during that time,” and provides a timeline describing her weekly workload from November 20, 2019, to June 8, 2020, which she refers as “exigent mission required duties.” She also states that when she requested time off to relocate, she was asked to work half days to assist the agency which she believes “further demonstrates the exigency and inability to take time off.” [3] Furthermore, the claimant states had she known that she would not be paid for the compensatory time off worked and approved she “would have used it instead of [her] annual leave.”
In its decision, the agency explains its determination to deny the claimant’s request for payment of unused compensatory time at the overtime rate in effect when earned, in part as follows:
An agency may provide that an FLSA-exempt employee who transfers to another agency or separates from Federal service before the expiration of the 26 pay period time limit receive payment for the unused compensatory time off at the overtime rate in effect when earned, if the failure to use the compensatory time off is due to an exigency of the service beyond the employee’s control. Nothing in your situation appears to show that an exigency of the service prevented you from taking compensatory time off, while on the contrary, you were advised that you should take such time off instead of regular leave which you elected not to take.
As already noted, [HRO] was willing to allow you to take your requested leave, albeit it needed to be compensatory time. Moreover, as you acknowledged, you notified your supervisor that you would be leaving the National Park Service on March 2, 2020 which was more than two and a half months from when you started your new position with the U.S. Department of Justice. Given that you had to have applied to the position months in advance of receiving your tentative offer letter, we believe that you had sufficient time in order to construct a plan forward to expend your compensatory time before leaving the agency. Therefore, based on the information provided, as well as regulatory constraints placed upon the NPS, your request is hereby denied.
In its AAR to OPM, the agency further explains:
We find that [claimant] appropriately utilized restored annual leave via established procedures, however utilizing restored annual leave and the circumstances surrounding it is not germane to the topic of compensatory time. The fact that [claimant] had a heavy workload and was extremely busy during the last few months of her tenure with the National Park Service does not negate the fact that at any time, she could have submitted leave requests to use the compensatory time earned.
Our records show that any leave that [claimant] did request, schedule, and ultimately take was leave other than the compensatory time earned. [Claimant] has not provided documentation to reflect that she had in fact requested to use her compensatory time but was denied by her supervisor due to an exigency of service situation.
* * * *
As an FLSA-exempt employee, [claimant] did not meet any of the established criteria to have compensatory time earned paid. Pursuant to management’s authority, discretion, and policy, her claim was denied.
The statutory authority for compensatory time off is established in section 5543, of title 5, United States Code (U.S.C.). Under 5 U.S.C. 5543(a)(2), the head of an agency may provide that an employee whose rate of basic pay is in excess of the maximum rate of basic pay for GS-10 shall be granted compensatory time off from their scheduled tour of duty equal to the amount of time spent in irregular or occasional overtime work instead of being paid overtime pay under 5 U.S.C. 5542. Regulations derived from the statutory authority governing compensatory time off in 5 U.S.C. 5543 are found in section 550.114 of title 5, Code of Federal Regulations (CFR), which provide in pertinent part:
(a) At the request of an employee, the head of an agency (or designee) may grant compensatory time off from an employee's tour of duty instead of payment under § 550.113 for an equal amount of irregular or occasional overtime work.
(c) The head of an agency may provide that an employee whose rate of basic pay exceeds the maximum rate for GS-10…shall be compensated for irregular or occasional overtime work with an equivalent amount of compensatory time off from the employee's tour of duty instead of payment under § 550.113 of this part.
(d) Except as provided in paragraph (f)(2) of this section, an employee must use accrued compensatory time off to which he or she is entitled under paragraph (a) or (b) of this section by the end of the 26th pay period after the pay period during which it was earned. The head of an agency, at his or her sole and exclusive discretion, may provide that an employee who fails to take compensatory time off to which he or she is entitled within 26 pay periods after the pay period during which it was earned must-
(1) Receive payment for such unused compensatory time off at the dollar value prescribed in paragraph (g) of this section; or
(2) Forfeit the unused compensatory time off, unless the failure to take the compensatory time off is due to an exigency of the service beyond the employee's control, in which case the agency head must provide payment for the unused compensatory time off at the dollar value prescribed in paragraph (g) of this section.
(f)(1) Except as provided in paragraph (f)(2) of this section, an employee with unused compensatory time off under paragraph (a) or (b) of this section who transfers to another agency or separates from Federal service before the expiration of the time limit established under paragraphs (d) or (e) of this section may receive overtime pay or forfeit he unused compensatory time off, consistent with the employing agency's policy established under paragraphs (d) and (e) of this section.
(g) The dollar value of compensatory time off when it is liquidated, or for purposes of applying pay limitations, is the amount of overtime pay the employee otherwise would have received for the hours of the pay period during which compensatory time off was earned by performing overtime work.
Relative to these criteria, DOI Personnel Bulletin No. 07-11, dated November 27, 2007, Subject: Departmental Policy on Time Limits for Using Earned Compensatory Time Off states in relevant part:
a. Approving Officials. The heads of Bureaus, equivalent offices, or their designee are granted authority to approve an employee’s request to take compensatory time off within 26 pay periods after the pay period during which it was earned, and to decide on the payment or forfeiture of unused compensatory time off in accordance with the requirements in paragraph d below. This authority may be further delegated at the discretion of the head of the Bureau or equivalent office to the level that best serves the interest of the organization.
d. Payment or Forfeiture of Unused Compensatory Time Off.
Compensatory time off that is not used within 26 pay periods after the pay period during which it was earned must be paid by the bureau or office or forfeited by the employee.
FLSA-Exempt Employees – If an employee is unable to take earned compensatory time off within 26 pay periods after the pay period during which it was earned due to an exigency of the service beyond his control, the Bureau or office must pay the employee for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. Also, if an employee transfers, separates, goes on extended leave without pay to perform service in one of the uniformed services, or has an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81, and is therefore unable to take earned compensatory time off within 26 pay periods after the pay period during which it was earned, the bureau or office must pay for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. In addition, if an employee fails to take compensatory time off before the expiration date and it is not due to an exigency of the service beyond the employee’s control, then the employee will lose all rights to both compensatory time off and to overtime pay.
Therefore, in accordance with regulation and agency policy, the head of an agency, at his or her sole and exclusive discretion may provide that an FLSA-exempt employee who (1) fails to take earned compensatory time off within 26 pay periods or (2) transfers to another agency or separates from Federal service before the expiration of the 26 pay period time limit receive payment for the unused compensatory time off at the overtime rate in effect when earned or forfeit the unused compensatory time off, unless failure to use the compensatory time off is due to an exigency of the service beyond the employee’s control. Under statutes that vest a degree of discretion to administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with the established facts as to render its conclusion unreasonable.
The claimant neither used her compensatory time off within regulatory time limits nor has provided documentation to demonstrate that she requested to use compensatory time off but was prevented to use it due to an exigency of service situation beyond her control. Therefore, as stated in agency policy (i.e., DOI Personnel Bulletin No. 07-11) “if an employee fails to take compensatory time off before the expiration date and it is not due to an exigency of the service beyond the employee’s control, then the employee will lose all rights to both compensatory time off and to overtime pay.” Accordingly, the claim is denied.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment. OPM does not conduct adversary hearings but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. See 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. As explained above, the claimant has failed to do so. Since an agency decision made in accordance with established regulations and within its discretionary authority as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.
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 does not state the number of unused compensatory time off hours that was forfeited for which she is seeking payment. However, based on the record it appears to be for 192.30 hours of compensatory time off as shown on her Leave and Earnings Statement for PP10.
[2] The statutory authority governing restoration of annual leave is found in 5 U.S.C. 6304. Annual leave shall be restored under the limited circumstances set out in section 6304(d)(1). However, as addressed in this decision, a separate statutory authority found in 5 U.S.C. 5543 sets forth the rules for payment of compensatory time off. Thus, the claimant’s basis that she should be paid for her unused compensatory time due to the same “exigent circumstances” used to approve her restoration of annual leave has no applicability to our claim settlement determination.
[3] The claimant states that she declined to work during that time.