U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Matter of: [claimant]

Date: June 26, 2002

File Number: 02-0032

OPM Contact: Melissa A. Drummond

The claimant is a former employee of the [claimant's agency], who believes he should be compensated for time spent participating in a medical examination and for being denied sick and annual leave. After our review of the claim, we find that OPM is precluded from considering the claim.

The claimant was removed from his position, effective September 21, 1996, on charges of being absent without authorization for an excessive period of time and failure to provide medical information to support his requests for leave, as ordered. The claimant filed an appeal with the Merit Systems Protection Board (MSPB) on September 23, 1996, challenging his removal and alleging, among other things, that the agency discriminated against him. The MSPB issued an initial decision on October 30, 1998, sustaining the agency action and finding no discrimination. The claimant petitioned the full MSPB to review that decision, but the MSPB denied the petition on May 24, 1999.

On August 31, 2000, the Equal Employment Opportunity Commission (EEOC) issued a decision, affirming the MSPB. In its decision of August 31, 2000, the EEOC found that the MSPB decision was supported by the record, and concurred with the MSPB findings. The EEOC found that the claimant's submission of medical documentation "was very limited and unresponsive." EEOC concluded that the agency had articulated a legitimate, nondiscriminatory reason for his removal, i.e., the claimant was absent without authorization for an excessive period, and he failed to provide medical information to support his absences.

The claimant bases his claims on the allegations that the agency acted improperly in determining that his medical evidence was not sufficient to support his absences from work, and that the agency issued "bogus" charges against him.¹ This is the same argument that he used before the MSPB and EEOC as the basis for his challenge to the agency's action in removing him from employment. MSPB and EEOC both rejected that argument and concluded that the claimant failed to provide medical information that was sufficient to support his absences, and that the removal action was justified.

In addition, the question of whether his medical documentation was sufficient to support his extended absences leads to, and cannot be considered apart from, the question of whether the agency's action in removing the claimant was proper. To adjudicate the claim, OPM would be required to decide whether the agency abused its discretion in requesting additional medical documentation and, ultimately, in removing him for unauthorized absence when he failed to submit that documentation. The MSPB and EEOC already have considered and decided these questions.

With respect to the claims that the claimant makes before OPM, he clearly could have raised these claims, but did not raise them, before MSPB and EEOC during the course of proceedings challenging his removal. Thus, he had the opportunity to raise before the MSPB and EEOC the issues that he presents to OPM. Moreover, if the claimant had succeeded in his MSPB/EEOC appeal of the removal action and related allegations of discrimination, he could have received the relief that he now seeks before OPM.

In view of this, it is clear that the claimant's claim before OPM, his challenge to his removal, and his discrimination claim all revolve around, and result from, the agency's determinations that his medical evidence was not sufficient to support his prolonged absence and, therefore, he should be removed from his employment. MSPB and EEOC, agencies with authority to review such determinations, already have decided that these determinations were proper. His claims that the agency acted arbitrarily already have been adjudicated. Therefore, OPM is precluded from considering his claim. O'Connor v. PCA Family Health Plan, Inc., 200 F. 3d 1349 (11th Cir. 2000); Hasson v. United States, 220 Ct. Cl. 615 (1979); Ray v. United States, 209 Ct. Cl. 761 (1976); Clark v. United States, 150 Ct. Cl. 470, 281 F. 2d 443 (1960); Matter of Carl A. Macmurdo, B-234257 and B-234257.2 (November 20, 1989); Matter of Sanford M. Altschul, B-192433 (October 4, 1978).

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

Distribution List

[claimant's name and address]

[agency's name and address]

¹ The claimant's allegation that the agency "abused" leave regulations still relates to whether the agency acted improperly in determining that his medical evidence was not sufficient and in taking a removal action against him.

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