Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Air Force
Westfield, Massachusetts
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/13/2020
Date
The claimant occupies a Supervisory Quality Assurance Specialist, GS-1910-12, position with the Massachusetts National Guard, Department of the Air Force, in Westfield, Massachusetts. He requests the U.S. Office of Personnel Management (OPM) correct the setting of his pay from step 9 to step 10 upon his promotion, effective July 8, 2018, to the GS-12 grade level, restoring his pay commensurate with the grade and step he earned when he previously occupied the Supervisory Quality Assurance Specialist position. We received the claim on April 18, 2019, and the agency administrative report on June 17, 2019. For the reasons discussed herein, the claim is denied.
While previously employed in a Supervisory Quality Assurance Specialist, GS-1910-12, step 10, position with the same organization, the claimant accepted a management directed reassignment on June 24, 2014, which resulted in a change-to-lower grade action. Effective July 27, 2014, he was assigned to an Assistant Inspector General, GS-1801-09, position and placed on pay retention where his salary remained set at $99,571. He maintained pay retention when he was promoted on June 28, 2015, to a Wing Inspection Program Manager, GS-1801-11, position. His pay retention was subsequently terminated upon his July 2018 promotion to the Supervisory Quality Assurance Specialist position, when the agency set his pay at the GS-12, step 9, rate (basic pay at $80,560, locality adjustment at $22,726, for a total salary of $103,286), due to his existing rate of pay falling within the GS-12 pay scale range.
The agency explains the pay setting decision for the claimant’s promotion action in its December 28, 2018, decision, as follows:
Since your existing rate of pay ($102,183) was higher than the two-step rule amount ($92,979), you are entitled to the first step in the higher grade that equals or exceeds the existing rate. In this case, that is Step 09.
The claimant disagrees with the agency’s pay setting decision and instead requests restoring his pay upon his July 2018 promotion to be commensurate with the step (i.e., step 10) he earned when he previously occupied the GS-12 Supervisory Quality Assurance Specialist position with the organization. His request appears to be based on the maximum payable rate (MPR) rule provided for by section 531.221 of title 5, Code of Federal Regulations (CFR), which allows an agency to set pay for a General Schedule employee above the rate that would be established using normal rules, based on a higher rate of pay the employee previously received in another Federal job; i.e., his or her highest previous rate (HPR).
There are specific provisions for setting pay when an employee on pay retention is promoted. Section 5334(b) of title 5, United States Code (U.S.C.), and its implementing regulations at 5 CFR 531.214(d)(5) provide that a General Schedule employee receiving a retained rate is entitled to the higher rate of the rate of basic pay that is two steps above the step 10 rate of basic pay for the grade of the employee’s position prior to the promotion, or his or her existing retained rate of basic pay.
Because the claimant was receiving a retained rate before promotion, we are required to apply the promotion rules described by 5 U.S.C. 5334(b) and 5 CFR 531.214(d)(5) (in addition to the implementing instructions provided by OPM for pay administration guidance found at https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/promotions/) relevant to retained rate employees, as follows:
Step A: Apply the standard method for the two-step promotion rule if the employee is covered by the same pay schedules before and after promotion, as if the employee were receiving the maximum rate of the employee’s grade before promotion.
(1) Using the underlying General Schedule, increase the GS-11, step 10, rate by two within-grade increases, which produces a rate of $72,521 ($68,983 + 1,769 + $1,769). (2) Multiply the increased rate by the applicable locality pay supplement amount to find the highest payable rate of pay associated with the $72,521 base rate. In this case, the payable (highest) rate of basic pay is $92,979 ($72,521 x 28.21% which is the amount of the locality pay supplement for the 2018 HAR salary table applicable to the locality pay area of Hartford-West Hartford, CT-MA). (3) The highest applicable rate range for the position of record after promotion is the GS-12 locality rate range. The lowest step in the GS-12 range that exceeds $92,979 is step 6 ($95,132).
Step B: If the payable rate of basic pay after promotion determined under Step A is greater than the employee’s existing retained rate, the employee is entitled to that payable rate.
The claimant’s existing retained rate of $102,183 is greater than the payable rate of basic pay after promotion identified under Step A (i.e., $95,132).
Step C: If the existing retained rate is greater than the rate determined under Step A, the retained rate must be compared to the highest applicable rate range for the position after promotion, as provided in 5 CFR 536.304. The employee is entitled to the lowest step rate in the range that equals or exceeds the retained rate or, if the retained rate exceeds the range maximum, to the retained rate.
The highest applicable rate range for the claimant’s GS-12 position after promotion is the GS-12 locality rate range in the 2018 HAR table. The GS-12, step 9, locality rate ($103,286) is the lowest step in that range that equals or exceeds the retained rate of $102,183 identified under Step B.
The claimant’s pay is set at GS-12, step 9, and his entitlement to pay retention ceases since his pay upon promotion exceeds his retained rate.
By application of the promotion rules for retained rate employees in 5 U.S.C. 5334(b) and 5 CFR 531.214(d)(5), we determined the agency correctly set the claimant’s pay upon promotion at GS-12, step 9.
The claimant asserts his pay should have been set using the MPR rule to set his pay upon promotion at step 10 because he previously held a GS-12 position at step 10 ($99,571) in 2014. The MPR rule allows an agency to set pay for a GS employee at a rate above the rate that would be established using normal rules, based on the higher rate of pay the employee previously received in another Federal job. Although an agency may choose to exercise its authority to set pay for an employee being promoted using the MPR rule, it is well established that employees have no legal entitlement to application of the MPR rule. When an agency has not relinquished its discretion through adoption of a mandatory policy or administrative regulation, the agency is under no obligation to set an employee’s pay using the MPR rule. See OPM File Numbers S9701098, S9701099.2, and 12-0014. The record before us is absent of any evidence showing that the agency has adopted such a nondiscretionary policy. Therefore, the claimant’s contention that “[t]he agency [needs] to make a determination based on [his] prior assignment as a GS-12, step 10”, is unsupported.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and his right to payment. OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the Government agency involved in the claim. See 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Where the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982. The claimant has not provided any basis on which his claim may be granted. The claim is accordingly denied for the reasons previously stated in this 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.