Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Department of Veterans Affairs
Detroit, Michigan
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/19/2021
Date
Introduction
On October 20, 2020, OPM received an Emergency Paid Sick Leave Act (EPSLA) paid sick leave claim from the claimant’s attorney on her behalf. The claimant was previously employed as a Nurse, VN-0610-II, with the Veterans Health Administration (VHA), Department of Veterans Affairs (VA) in Detroit, Michigan. She requests that OPM “retroactively grant leave taken in accordance with the EPSLA; reverse the PSB’s [Professional Standards Board’s] decision and find it improper as it violates the EPSLA, and reinstate her employment classification from the date of separation, restoring all pay and benefits and making her whole for lost wages and benefits incurred during her unlawful termination.” Section 5105 of the Families First Coronavirus Response Act (FFCRA) provides that employers (such as Federal agencies) who violate the EPSLA paid sick leave provisions shall be considered to have failed to pay minimum wages in violation of the FLSA (Section 206 of title 29, United States Code (U.S.C)). [1] Therefore, we have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at 29 U.S.C. 204(f).
In reaching our FLSA decision, we have carefully reviewed all information of record submitted by the claimant.
Nature of claim
The claimant was appointed to the position of Nurse, VN-0610-II, subject to a two-year probationary period effective June 9, 2019. In December 2019, the claimant began taking various leave options to care for her mother who was having health problems. The claimant provides that in late March 2020 her mother was hospitalized and contracted Coronavirus Disease 2019 (COVID-19). Based on having direct contact with her mother, the claimant
was ordered to self-quarantine on April 1, 2020, and then again on April 14, 2020, when she herself experienced COVID-19 symptoms. The claimant asserts that believing her paid time off was running out, on or about April 1, 2020, she requested leave without pay (LWOP). By agency memorandum dated April 16, 2020, with subject: “LWOP Request,” the claimant’s request for LWOP from “April 01, 2020 through June 10, 2020” was denied. Further, by agency letter dated April 16, 2020, with subject: “Return to Duty,” the claimant was notified that as she had been in an absent without leave (AWOL) status since April 2, 2020, she was ordered to return for duty on April 23, 2020, or to provide acceptable documentation indicating the reason(s) why she was unable to report for duty. The claimant returned to work on the date ordered. Subsequently, in an email to her supervisor, dated May 8, 2020, the claimant requested leave under the EPSLA. The claimant asserts that her EPSLA paid sick leave request was denied without a clear explanation as to the basis for denial. The claimant believes that the “AWOL days (between April 10 or 12 and April 23) attributed to her should have been covered by the EPSLA,” and that she “would have worked 80 hours or less between April 10 and April 23.”
Furthermore, the claimant appears to attempt to link her request for EPSLA paid sick leave to her agency’s determination for her separation from the VHA during her probationary period. By agency letter dated July 29, 2020, the claimant was notified that as a result of a PSB review, it was determined the she would be separated from the VHA with an effective date of August 21, 2020. The claimant resigned from her position effective August 14, 2020, but states that “[w]hen the Employer terminated her, it violated the Family [sic] First Coronavirus Response Act (FFCRA).”
Under 5 CFR 551.704, a claimant may designate a representative in writing to assist in preparing or presenting a claim. The claimant’s attorney submitted no written designation and therefore lacks standing to act as the claimant’s duly appointed representative. However, based on information submitted into the record, we may render a decision on the claim based on lack of jurisdiction.
Jurisdiction
OPM’s adjudication authority, under the provisions of 29 U.S.C. 204(f), is an administrative remedy, not a judicial remedy. See 5 CFR part 551, subpart G. Section 7121(a)(1) of 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, leave or FLSA 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).
Documentation provided by the claimant shows she occupied a bargaining unit position (i.e., Notification of Personnel Action, Standard Form (SF) 50, block 37). The Master Agreement between the VA and the American Federation of Government Employees covering the claimant during the period of the claim, does not specifically exclude leave or FLSA issues from the NGP (Article 43). 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. The claimant also provided a Notification of Personnel Action, SF 50, showing she resigned her employment with the VHA effective August 14, 2020. 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 the VHA 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 the VHA.
Decision
The claim is denied based on lack of jurisdiction.
[1] We note that a Federal agency employing an employee who is a “health care provider” or an “emergency responder” may elect to exclude the employee from taking EPSLA paid sick leave. (See sections 5102(a) and 5111(1) of EPSLA).