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


03/20/2015

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Date

The claimant is a current employee of the Department of Army (DA) with the U.S. Army Acquisition Support Center at Ft. Bliss, Texas.  The claimant asserts her first-level supervisor denied her request for advanced sick leave under the Family and Medical Leave Act (FMLA).  She also asserts she has “had to endure intense retaliation (due to fraud, waste and abuse)” and is “misclassified in my job series as well.”  The claimant further alleges retaliation by the agency for "not following up on the Merit Systems Protection Board [MSPB] order that was due 20 August 2014" and asks OPM to “look into this issue.”  We received the claim request on January, 7, 2015, and additional information from the claimant on January 27, 2015.  For the reasons discussed herein, the claim is denied.

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 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 appears to construe her supervisor's denial of her November 2014 leave request as an agency-level decision.  However, the term "agency-level" in her case refers to DA, not her local activity level.  Nevertheless, we may render a decision on her leave 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).

Documentation obtained by OPM shows the claimant occupied a bargaining unit position (SF-50 block 37) during the period of the claim.  The CBA between the U.S. Army TACOM Life Cycle Management Command; Program Executive Office, Integration; U.S. Army Tank Automotive Research, Development and Engineering Center; Program Executive Office, Combat Support & Combat Service Support; Program Executive Office, Ground Combat Systems; TACOM Contracting Center; U.S. Army Garrison – Detroit Arsenal; Network Enterprise Center – Detroit Arsenal; Military Medical Readiness and Occupational Health Center; and Local 1658, American Federation of Government Employees (AFL-CIO), covering the claimant during the period of the claim does not specifically exclude leave issues from the NGP (Article 42).  Therefore, the claimant's leave 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 claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) is limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining if monies are owed for the stated compensation or leave claim.  It does not extend to complaints regarding position misclassification or allegations of retaliation, or intervening on the claimant's behalf with other appellate agencies such MSPB.

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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