Annual leave no contest

An agency recently fired an employee who had become physically impaired. On this one, I'll have to side with the government.

The case in point involved F. Paul Jones. Jones worked for the Transportation Department as a criminal investigator (GS-13) when he suffered an incapacitating brain aneurysm May 28, 1995. This left Jones permanently unable to perform his job. During the next few months, the federal community responded generously and donated about seven years' worth of leave to Jones.

The Voluntary Leave Program (VLP) permits federal employees to transfer unused accrued annual leave to an employee experiencing a medical emergency. A medical emergency is considered terminated on the date the leave recipient says he no longer has a medical emergency or is separated from service.

The Transportation inspector general's office initially approved Jones' participation in the leave donation program based on Jones' medical certification, which cited "significant improvement" and the need to provide the employee with as much opportunity as possible to recover. However, Transportation officials became impatient because they wanted to fill Jones' position — something that could not be done while he was on leave status. Permitting him to remain on leave status for several years would create a "hardship" for the office where he had worked, they said. He was eligible to retire or file for disability retirement, the officials said.

In a letter to Jones dated Nov. 30, 1999, Transportation officials told him he was going to be removed from his position because of his physical inability to perform his job. Enclosed with the letter were separate applications for disability retirement and for a full law enforcement retirement. Jones refused to leave and said the agency couldn't make him.

On Feb. 8, 2000, Transportation officials issued a final decision removing Jones from his position, to take effect Feb. 26. However, the agency subsequently offered to keep Jones on paid leave status through March 31, if he filed for retirement as of that date and did so before the effective date of his removal. Sounds reasonable to me, but Jones refused and he was fired.

Jones appealed his removal to the Merit Systems Protection Board, conceding that the elements of the removal charge were met, but he argued that the agency could not remove him as long as he had a positive transferred leave balance. The MSPB upheld Transportation's action, so Jones appealed the decision to the U.S. District court.

The court said whether or not to terminate Jones was entirely up to the agency. The donated leave had no bearing on the matter. The law that set up the VLP allows an agency to decide whether an employee can participate in the program and for how long.

I think Jones got greedy. He could have had the same leave balance based on his own work, and the outcome would have been exactly the same.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at [email protected]

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