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


07/17/2014

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Date

The claimant seeks to file a “FMLA (Family and Medical Leave Act) violation claim" against her former first-level supervisor at her former employing agency, the U.S. Department of the Interior (DOI).  We received the claim on May 20, 2014, forwarded to OPM by the U.S. Department of Labor on May 13, 2014, and additional information from the agency at our request to complete the record on May 22, 2014.  For the reasons discussed herein, the claim is denied.

OPM settles Federal civilian employee 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 leave 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 leave claim with the agency component authorized to issue an agency-level decision or that she has received such a decision.  Rather, she presented a compilation of documents related to her employment with DOI in which she appears to assert the aforementioned “FMLA violation” was related to her “wrongful termination on May 3, 2013” by DOI.  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 the Aviation Management Directorate, National Business Center, DOI, and the National Federation of Federal Employees, covering the claimant during the period of the claim does not specifically exclude leave issues from the NGP (Article 27).  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.  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 DOI 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 DOI.

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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