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Office of Merit Systems Oversight and Effectiveness

Date: February 25, 2002
File Number: [01-0055]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant was employed with the [agency]. The claimant is requesting a lump-sum payment for leave, which she earned while employed in a full-time position with [the agency]. We accepted the claim on September 13, 2001 and we received the agency's information on December 6, 2001. For the reasons discussed herein, the claim is granted.

The claimant changed from a full-time position to an intermittent position in [the agency] on August 30, 1998. The claimant stated that she did not earn leave in the intermittent position, and the agency maintained her accumulated annual leave. The claimant also stated that the agency did not provide her the option to take her leave or let it stay in abeyance until she found another full-time position in the agency. The claimant requests the agency pay her for the hours of annual leave that she accumulated when she was employed in a full-time position with the agency.

The agency created a temporary intermittent position not to exceed one year to accommodate the claimant's request to transfer to a field position when the claimant moved to [city, state]. The agency maintained the hours of leave because it believed that the claimant was seeking full-time employment within commuting distance of [city, state] when she converted from a full-time position at the State Office to an intermittent position at the Field Office. The agency stated that the claimant's resignation, to be effective June 30, 1999, was placed in abeyance pending the claimant's acceptance of another Federal position. The agency has no record of any verbal or written correspondence with the claimant and any agency representative regarding lump-sum annual leave payments to the claimant.

The agency stated that the claimant requested an extension of her intermittent appointment in June 1999. The extension was denied on June 8, 1999, due to budget restraints. On or about June 28, 1999, the agency contacted the claimant's agency about the possibility of extending the claimant's appointment so that they might hire her without a break in service. The agency agreed and extended the appointment through July 3, 1999. On July 4, 1999, the agency appointed the claimant to a temporary intermittent position.

The agency referenced Title 5 of the U.S. Code, Chapter 1, Part 660, Subpart L, which states:

. . . provides for the payment of a lump-sum payment for accumulated and accrued annual leave when an employee: (1) separates from Federal service; or (2) enters on active duty in the armed forces and elects to receive a lump-sum payment for accumulated and accrued annual leave.

The agency believes that the claimant did not meet either of the requirements of 5 U.S.C., Chapter 1, Part 660, Subpart L at the time she changed her tour of duty with the agency. The agency did not process a lump-sum payment for the claimant's accumulated annual leave because it believed it was in compliance with U.S.C. as stated,

. . . hold such annual leave in abeyance for recredit if the employee is subsequently reemployed without a break in service in a position to which his or her accumulated and accrued annual leave may be transferred.

Section 178.105 of title 5, Code of Federal Regulations (5 CFR) states:

The burden is upon the claimant . . . . to establish 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. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary.

The Civilian Personnel Law Manual states,

Where an employee converts to a position as an intermittent employee with no regular tour of duty during an administrative workweek and where he will earn no leave and cannot transfer his leave, he shall receive a lump-sum payment for all annual leave accumulated under his prior position. 33 Comp. Gen. 85, 88 (1953) and 47 Comp. Gen. 706 (1968).

Based on the Comptroller General's decisions, when the claimant changed from a full-time position to an temporary intermittent position with [the agency] on August 30, 1998, the claimant was entitled to a lump-sum payment for her accumulated annual leave.

Effective July 8, 1999, Subpart L- Lump-sum Payment for Accumulated and Accrued Annual Leave, was included in 5 CFR § 550. 5 CFR § 550.1203(i) indicates that an "agency may choose to pay an employee a lump-sum payment or hold the employee's annual leave in abeyance during intermittent duty and recredit it when the employee returns with a break in service to full-time or part-time employment" for an employee in a continuing employment program with a mixed tour of duty. Although this regulation covers part of the claim period, the claimant was not in a continuing employment program at any time during the claim period. Since the claimant was converted from a full-time position to an intermittent position where she could earn no leave, the claim is granted.

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. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985.

The agency should pay the claimant a lump-sum payment for the hours of leave as described in 5 CFR § 550.1205. If the claimant believes that the agency has computed the amount incorrectly, she may file a new claim with this office.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

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