Washington, DC

U.S. Office of Personnel Management
Compensation 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


09/15/2016

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Date

The claimant is a Federal civilian employee of the National Marines Fishery Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce (DOC), in Honolulu, Hawaii.  Through his duly appointed representative, he seeks “[i]ssuance of SF-50 to document the five-year promotion detail as Training Coordinator, ZP-III (3)” [described as August 2009 through May 2014]; “[b]ack pay for five (5) years totaling approximately $151,997 [the difference between ZP-III (3) pay minus ZP-II (2/3) pay], with credit into his retirement system”; and “[r]easonable [a]ttorney’s fees and costs pursuant to the Back Pay Act.”  We received the claim request on July 1, 2015, the claimant’s designation of representation on July 6, 2015, the agency administrative report (AAR) on November 24, 2015, the claimant’s comments on the AAR on November 25, 2015, and additional documentation from the agency on July 19, 2016.  For the reasons discussed herein, the claim is denied.[1]

In a declaration dated June 17, 2015 (exhibit L of the claim), the claimant asserts that in January 2009 he was “offered and accepted Training Coordinator position by [his] supervisor…in addition to [his] permanent duties as Debriefer…due to [his] expressed interest in returning to higher-graded ZP-III(3) service,” and he “was told that that … the Deputy Regional Administrator…had approved creating a new ZP-III (3) Training Coordinator position, which [he] could apply for when advertised.”  The claimant states:

Attached is a copy of the ZP-III (3) position description and performance standards for this Training Coordinator position as previously occupied by [name of employee] when he was Training Coordinator.  From January 2009 to June 2014,[2]  I performed each of the duties listed therein.  I was also evaluated by my supervisor… as “fully satisfactory” during this period of time.

*                      *                      *                      *                      *                      *

In May 2014, though I had many successes in this role, and due to management’s uncertainty on how to handle my pay grade request, I was ordered by [supervisor] to cease performing all Training Coordinator duties, and to return to only the duties of a full time Debriefer with enfacement and safety collateral duties.

He further asserts his supervisor “requested that [he] disregard the “cease and desist” TC duties request, and instead, to complete a last outstanding project…. Once [he] finished this task, on June 27, 2014, [he] was asked to return to full time Debriefer duties.

However, the claimant’s assertions that the Training Coordinator position at issue in this claim was vacant and, by inference, that he was performing the full range of its duties, conflict with Exhibit H of his claim, a statement from the claimant dated February 26, 2014, in which he states, in relevant part:

I am writing in continuation to my 12/16/2013 request to have my position’s duties and classification reviewed, as I continue to perform duties beyond my pay grade.  Upon conference with NOAA WFMO [Workforce Management Office] and a subsequent review by PIRO [Pacific Islands Regional Office] OMI [Operations, Management and Information], it was agreed that my current duties are above my current pay grade of ZP-2, and belong to the ZP-3 billet that is currently being occupied by the International Coordinator.  The OMI recommended solution is to create a new ZP-3 billet in the Observer Program for the International Coordinator position, which would allow the current International Coordinator to occupy a position that more accurately describes his role within the Program and will allow him to be reassigned to that billet without competition.  At the same time the ZP-3 billet, currently occupied by the International Coordinator, position description would be redrafted to better reflect the duties I have accrued over the last 5 years.[3]  [Emphases added]

This tracks the agency AAR’s description of events:

In or around the Fall of 2008, [Director of the NMFS Observer Program] and Mr. Kupfer discussed Mr. Kupfer’s potential return to the Honolulu Pacific Islands Regional Office (PIRO) in order to take on training coordination duties as a team lead.  Previously,  [Training Coordinator ZP-III] had been tasked with these duties, but the duties had increasingly evolved to include performing similar services internationally; as a result, management needed to shift local training duties to other employees while [Training Coordinator ZP-III] continued to perform the international components of training.  See Claim at Exhibit J.  According to Mr. Kupfer’s recollection of this conversation, Mr. Kupfer stated: “I said I would accept the greater responsibilities, than any of the other staff, and serve as a ‘team lead’ with the agreement that it would be my ‘in-road’ back to a ZP-3 position.”  Claim at Exhibit B, page 2. To date, Mr. Kupfer has provided no documentation or communication from management stating or indicating that these additional responsibilities would actually constitute a temporary promotion. Because [Training Coordinator ZP-III] did not vacate his ZP-III position, there was no vacant ZP-III position to which Mr. Kupfer could have been temporarily promoted.

Our review of the “training coordinator” ZP-3 position description (PD) in question (PD #543020061785, preparation date: 8/16/2006) reveals that it covers both domestic and international training duties:

Specialty Description:

048202 Vessels & Observers

Formulates, implements, and monitors commercial fishing vessel registration and activities; administers observer placement program; manages and maintains effective data collection, statistical sampling plans, and reporting procedures.

Position-Specific Key Phrases:

Observers, training, international, data collection, analysis, reports, fishing management

Thus, we conclude the position in question remained encumbered by the claimant’s coworker and that the claimant assumed a portion of the ZP-3 position’s workload.  The statements from “Agency managers, colleagues” obtained by claimant’s representative do not support the representative’s assertion that the claimant performed the full range of duties of the Training Coordinator position.  Rather, the record shows the international functions listed in the PD continued to be performed by the claimant’s coworker, who remained officially assigned to the position in question during the period of the claim.

The agency states that, as a general principle, “OPM has made clear back pay is not available for periods of misclassification, citing to United States v. Testan, 424 U.S. 392, 406 (1976), OPM  decision number 09-0017, February 17, 2012; and OPM decision number 12-0009, May 21, 2012.  Claimant’s representative, however, contends Testan does not apply since the claim “does not involve any classification issues,” citing “U.S. Dep’t of the Air Force, Warner Robins Air Force Logistics Ctr, Warner Robins Air Force Base, Ga., 37 FLRA 155, 159 (1990) (Testan not applicable because grievant was not seeking reclassification of her position, but rather a temporary promotion for time in which she performed duties of a higher-graded position. (emphasis added). [Warner Robins].”  The agency asserts that Warner Robins is distinguishable because the claimant was not a bargaining unit member, so no bargaining unit agreement applies.

The agency further asserts:

It is well established that “to establish a claim for back pay based on a detail to a higher-graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion for such a detail to a higher-graded position, and (2) the claimant, was in fact, detailed to a higher-graded position … the claimant has the burden of proving that he was detailed to and performed the duties of the higher-graded position.” Turner-Caldwell III, 61 Comp. Gen. 408 (1982); Albert C. Beachley and Robert S. Davis, 61 Comp. Gen. 403 (1982); OPM decision 03- 0001 (July 22, 2004).

… Mr. Kupfer has failed to meet his burden to show that either: (1) an OPM regulation; (2) an Agency regulation or policy; or (3) a collective bargaining agreement provides an exception to the general rule that an employee is entitled to pay only for the position to which the employee is actually appointed.  See e.g. Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (B-232695) (Dec 15, 1989).

As an initial matter, OPM is not bound by decisions issued by the Federal Labor Relations Authority, e.g., Warner Robins.  However, we note that Warner Robins relies upon the previously cited decision of the Comptroller General, Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (B-232695) (Dec 15, 1989).  We find the reasoning in B-232695 directly applicable to the instant claim:

In this case there is no evidence of a detail of the employees to the higher-graded position.  Instead, it appears that over a period of several years they either assumed or were assigned some duties which were associated with the higher-graded position.  Thus, it appears that the situation here was one of misassignment or accretion of some higher graded duties, not a detail to the higher-graded position.

B-232695, in turn, cites to Beachley and Davis, 61 Comp.Gen. 403 (1982), and Albert W. Lurz, 61 Comp.Gen. 492 (1982).

As previously discussed, the record shows the claimant was not detailed to a higher-graded position during the period of the claim.  Although he was performing portions of a higher-graded position, a new position incorporating solely the TC duties was never established and classified.  Therefore, we find the claimant  performed a set of unclassified duties  that remained officially assigned to a position occupied by another employee and was not detailed to that classified position.  Further, the record shows the agency did not have a regulation in place requiring a temporary promotion for a detail to a higher-graded position.  Since he was not a member of a bargaining unit, no collective bargaining agreement could have been in place requiring a temporary promotion for a detail to a higher-graded position.  Thus, the conditions permitting a retroactive promotion in 61 Comp. Gen. 408 (1982) and its progeny are not met, and we conclude the claim must be denied.

Contrary to claimant’s representative, Testan is applicable to this claim as discussed in B-232695:

The general rule is that an employee is entitled only to the salary of the position to which he is actually appointed, regardless of the duties performed.  When an employee performs the duties of a higher grade level, no entitlement to the salary of the higher grade exists until such time as the individual is actually promoted.  This rule was reaffirmed by the United States Supreme Court in United States v. Testan, 424 U.S. 392, at 406 (1976), where the Court stated that "... the federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claim that he should have been placed in a higher grade."  See also Wilson v. United States, 229 Ct.Cl. 510 (1981).  Consequently, backpay is not available as a remedy for misassignments to higher level duties or improper classifications.  Regina Taylor, B-192366, Oct. 4, 1978. 

As discussed in 61 Comp. Gen. 408 (1982) and its progeny, back pay becomes available when conditions are in place that require the processing of a retroactive promotion action, including that there be an established and classified position in place to which the employee could be detailed or temporarily promoted.  Further, such promotion actions are limited in duration to 120 days by regulation in any 12 month period, thereby precluding the remedy sought by the claimant; i.e., “Back Pay for five (5) years”.  See 5 CFR 335.103(c)(i) and (ii).[4]

Claimant’s representative argues the claimant “consistently followed management instructions and continued to do the job of Training Coordinator, operating under the promises that he would receive both the temporary detail to the TC [Training Coordinator] position, and so that he would be better positioned to apply for a permanent ZP-III in the future,” and that the claimant “relied upon management’s statements and actions to his detriment.”  The claims jurisdiction of OPM is limited to consideration of the statutory and regulatory merits of the individual compensation or leave claims before us.  It does not extend to consideration of the equity, fairness, or resulting hardship of the agency’s actions.  Therefore, the claimant’s aforementioned assertions have no applicability to our claim settlement determination.  Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law.  See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990).  Therefore, the claimant’s assertion of detrimental reliance has no effect on our claim decision.

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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