Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Veterans Affairs
Gainesville, Florida
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/19/2022
Date
The claimant is a Podiatrist (General), VM-0668-15, with the Veterans Health Administration, Department of Veterans Affairs (VA), in Gainesville, Florida. She asserts her agency improperly set her salary lower in comparison to surgical podiatrists, who she states have similar credentials and qualifications as her. As a remedy, she seeks “to have [her] salary adjusted to the rightful amount of $180,000 as well as receive the back pay due for the past years along with interest and adjusted funds to all benefits, such as retirement and life insurance.” In addition, she requests “the full compensation of Performance Pay, which is $54,000 for FY2018, 2019, 2020 and 2021…” We received the claim on September 6, 2021. For reasons discussed herein, the claim is denied.
The claimant filed her request under the Fair Labor Standards Act (FLSA) claims process. Congress vested the U.S. Office of Personnel Management (OPM) with authority to administer the provisions of the FLSA with respect to certain Federal civilian employees. See section 204(f) of title 29, United States Code (U.S.C.). OPM adjudicates and settles claims for unpaid overtime or violations of the child labor law from covered Federal employees under subpart G of part 551 of title 5, Code of Federal Regulations (CFR). The FLSA claims process does not cover salary inequity disputes.
Under the provisions of 31 U.S.C. 3702, Congress vested OPM with authority to adjudicate various compensation and leave claims for many Federal employees. As such, we have considered the claimant’s issues under the provisions of 31 U.S.C. 3702(a)(2). However, section 5 CFR 178.102(a) indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication. The information provided by the claimant with her request does not show she has filed a signed, written claim with the VA component authorized to issue an agency-level decision or that she has received such a decision. Nevertheless, we may render a decision on this claim in its entirety based on lack of jurisdiction.
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 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 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 (i.e., the Standard Form 50 showing the bargaining unit status in block 37) shows the claimant occupies a bargaining unit position. The Master Agreement between VA and the American Federation of Government Employees, covering the claimant during the claim period, does not specifically exclude compensation issues from the NGP (Article 43, Grievance Procedure, of the CBA). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and consequently OPM has no jurisdiction over the claim.
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.