Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Treasury
Baltimore, Maryland
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/13/2020
Date
The claimant is a Federal civilian employee of the Internal Revenue Service (IRS), Department of the Treasury, in Baltimore, Maryland. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request to apply the maximum payable rate (MPR) rule, credit prior work experience in determining her annual leave accrual rate, and provide other remedies as a result of the IRS’s cancellation of her temporary promotion. We received the claim request on November 7, 2019, the agency administrative report on February 24, 2020, and the claimant’s comments on the report on March 9, 2020. For reasons discussed herein, the claim is denied.
The claimant was previously employed with the Department of State (State) under a Personal Services Contract (PSC). In her claim to OPM, she states she occupied a Program and Management Analyst position equivalent to the GS-13, step 3, rate when her employment with State ended in June 2011. Effective November 13, 2017, she was appointed to a Contact Representative, GS-962-05, position with the IRS under a career-conditional appointment, and her pay was set at the step 1 rate. The claimant, however, asserts that based on the rate of pay earned from her employment with State under a PSC, the IRS should have set her pay upon appointment under the 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. She also states the time she was employed with State under a PSC is considered creditable service, and the IRS should have granted her a leave accrual rate of six hours per pay period and “[restoration of] unused sick leave.”
Subsequently, the claimant was temporarily promoted on August 4, 2019, to a Management/Program Analyst, GS-343-14, position not to exceed November 23, 2019. In its administrative report to OPM, the agency explains that IRS officials initially determined she was qualified for the GS-14 position based on statements made in her resume. In October 2019, the agency cancelled her temporary promotion because PSCs are not Federal employees for the purpose of any law administered by the Office of Personnel Management. Therefore, the claimant’s service as a PSC does not count towards the time in grade requirement for the IRS promotion. Such service also does not count towards application of the MPR or for annual leave accrual purposes. The claimant disagrees with the agency’s determination, requesting “restoration of the detail to [her] file and all pay forfeited plus interest as a result of the reversal of the personnel action.” She estimates the approximate amount owed to her as $9,684.80.
Section 7121(a)(1) of title 5, United States Code (U.S.C.), directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive remedy for resolving matters that fall within the coverage of the CBA. The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002). Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA. Id. at 1231. As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 178.101(b). The claimant asserts in her comments on the agency administrative report that the GS-14 position to which she was temporarily promoted was not covered by a bargaining unit. Regardless, the record shows the GS-962 Contact Representative position she occupied preceding and succeeding her temporary position was covered by a CBA and thus subject to the NGP under the CBA during the claim period.
Information provided by the agency (i.e., the Standard Form 50, dated January 5, 2020, showing the bargaining unit status in block 37) confirms the claimant occupied a bargaining unit position during a period covered by the claim. The National Agreement between IRS and the National Treasury Employees Union, covering the claimant during the claim period, does not specifically exclude compensation and leave issues from the NGP (Article 41, Employee Grievance, of the CBA in effect in 2019). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and consequently OPM has no jurisdiction over the claim.
Although we may not render a decision on this claim, we note the claimant misconstrues the scope of the OPM’s claims adjudication process. In her comments on the administrative report, the claimant characterizes the agency’s cancellation of her temporary promotion as an “illegal removal” and seeks various remedies from the agency as a result of the termination of her promotion. OPM’s authority under 31 U.S.C. 3702(a)(2) is narrow and limited to adjudication of compensation and leave claims. Section 3702(a)(2) does not include authority to review an agency’s qualification or eligibility for promotion determinations which the claimant appears to seek to challenge by filing this claim. Accordingly, OPM would also lack jurisdiction to adjudicate the issues regarding termination of her promotion.
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.