Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Wake Forest, North Carolina
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/10/2018
Date
The claimant is a Federal civilian employee of the U.S. Office of Personnel Management (OPM) in Wake Forest, North Carolina. She seeks an OPM decision settling her pay retention rate, and requests “back pay and correction of current compensation going forward.” OPM received the claim on June 5, 2017, and the agency administrative report on July 14, 2017. For the reasons discussed herein, the claim is denied.
On January 21, 2014, the claimant received a reduction in force (RIF) notice from OPM Human Resources (HR), informing her that her position as a Supervisory Program Analyst, GS-343-14, would be terminated. On February 27, 2014, the claimant received an amended RIF notice, offering her a position as a Purchasing Agent, GS-1105-09, in lieu of the then-impending separation. In the same letter, the claimant was notified that if she accepted the offer she would be provided grade and pay retention. The claimant accepted the offer, and from March 30, 2014, to March 29, 2016, was provided grade and pay retention. On July 3, 2014, the claimant e-mailed an OPM HR representative to ask what would occur after the two years of grade retention expired. The representative informed the claimant that after the two years of grade retention, she would be placed on pay retention. The representative then erroneously wrote that “[her] pay [would] remain at its current level. However, [she would] only be entitled to 50% of the annual pay adjustments and no within grade increases.” The claimant states she “was ok with [the] explanation of pay retention.”
In her claim to OPM, the claimant expresses that she was “dismayed and bewildered” when she received her “2016 pay period [seven] pay check” and noticed a significant decrease in her annual rate of pay. The claimant states that she promptly contacted OPM HR, and on April 7, 2016, received a Notification of Termination of Grade Retention letter, which stated that her grade retention ended effective March 29, 2016. The letter also explained that she was entitled to receive pay retention effective March 30, 2016. However, the claimant disagrees with the agency’s retained pay rate determination, and seeks retention at her previous GS-14, step 7, rate based on information she received from the OPM HR representative.
In an email dated May 26, 2017, the agency further explained that with the termination of her grade retention the claimant was “now entitled to pay retention as authorized under” section 536.304 (b)(3)(i) of title 5, Code of Federal Regulations (CFR). According to the agency, this afforded the claimant to “remain at the current pay retention level at the time of movement (150% of the maximum for the GS-09 grade)” and “50% of the annual pay adjustment[s].” In its administrative report to OPM, the agency asserts that “there is no authority to set [the claimant’s] pay at the GS-14 level” as “[she] is currently performing GS-09 duties.”
Grade retention following a change of positions is governed by section 5362 of title 5, United States Code (U.S.C.). Generally, that section provides that any employee whose position has been reduced in grade is entitled to have the grade of such position before reduction be treated as the retained grade of such employee for a 2-year period beginning on the date of the reduction in grade.
Grade retention under section 5362 is to be distinguished from pay retention under 5 U.S.C. 5363. Under 5 U.S.C. 5363(a)(1), pay retention is authorized for employees upon expiration of the two-year period of grade retention under 5 U.S.C. 5362.
The controlling regulations for grade and pay retention are found in 5 CFR part 536. 5 CFR 536.201(c)(1) establishes that mandatory grade retention applies when an employee’s movement to a lower-graded position is considered a result of reduction-in-force. It states, in part:
(c) An employee’s movement to a lower-graded position is considered to be the result of reduction in force procedures when the employee has received a specific reduction in force notice and ---
(1) The employee is placed in the position offered in the notice; or
(2) The employee is placed in a position other than that offered in the notice but in the same agency, if the position was offered in writing and at the initiative of management.
Here, on February 27, 2014, the claimant received an amended RIF notice offering her a lower-graded position, in lieu of separation, which she accepted. Hence, 5 CFR 536.201(c) is applicable to the claimant’s situation.
Section 536.204(a) of title 5, CFR echoes 5 U.S.C. 5362, in that it correspondingly provides the period of grade retention entitlement. It states:
(a) Unless grade retention is terminated under §536.208, an employee is entitled to retain the grade held immediately before the action that provides entitlement to grade retention for 2 years beginning on the date the employee is placed in the lower-graded position.
Here, the claimant was placed in the lower-graded position effective March 30, 2014. Thereafter, the claimant retained pay at her previous GS-14, step 7, rate until March 29, 2016 (i.e., for 2 years). This action is directly in step with 5 CFR 536.204(a), as cited above, and 5 CFR 536.205(a), which states “…an agency must treat an employee’s retained grade as the employee’s grade for all purposes, including pay and pay administration…” Most of all, the action is in accordance with 5 U.S.C. 5362(c), which provides, for the 2-year period, the retained grade “shall be treated as the grade of the employee’s position for all purposes (including pay and pay administration…”.
Section 536.301(a)(1) of title 5, CFR provides instructions for when mandatory pay retention must be provided as a result of the expiration of the 2-year period of grade retention. It states:
(a) Subject to the requirements in §536.102 and this section, an agency must provide pay retention to an employee who moves between positions under a covered pay system or from a position not under a covered pay system to a position under a covered pay system and whose payable rate of basic pay otherwise would be reduced (after application of any applicable geographic conversion under §536.303(a)) as a result of---
(1) The expiration of the 2-year period of grade retention under subpart B of this part.
Finally, the rules for determining an employee’s pay retention entitlements are provided in 5 CFR 536.304(b)(3)(i), which states:
(b) Determining initial pay retention entitlement. When an employee becomes entitled to pay retention under § 536.301 or 536.302, the agency must determine the employee’s pay retention entitlement under the following rules (subject to the requirements in paragraph (a) of this section):
(3) A newly established retained rate may not exceed---
(i) 150 percent of the maximum payable rate of basic pay of the highest applicable rate range for the grade of the employee’s position of record.
Therefore, under 5 CFR 536.304(b)(3)(i), the claimant was entitled to receive 150 percent of the highest step (i.e., step 10) of her GS-09 position. Thus, 150 percent of the maximum rate of the new highest applicable rate range equaled $98,478 ($65,652 x 1.50).
Finally, concerning the claimant assertion that she relied on the information provided in email correspondence, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso V. OPM, 116 F.3d 459 (Fed. Cir. 1997); and 60 Comp. Gen. 417 (1981). An employee is entitled only to the salary of the position to which he or she is appointed United States v. Testan, 424 U.S. 392 (1976); B-232695.
In view of the foregoing, we conclude the agency properly established the claimant’s retained rate of pay in accordance with controlling regulations, and therefore, the claims for a higher pay retention rate and back pay are denied.
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.