Office of the General Counsel

Claim #: 60088620

Dear Mr. [xxx]:

This replies to your letter of March 19, 1997, appealing the March 3, 1997 settlement denying your claim for pay retention. The dispositive legal issue in your claim is whether you voluntarily accepted a lower-graded position. If you did, you may not receive retained pay. 5 C.F.R.  536.105 (a)(3).

As an employee of the [agency] you are subject to a "mobility clause". That means that you accepted your job knowing that you may be required from time-to-time to relocate to another city and, if you rejected what is called a "directed reassignment", you may lose your job.

According to the record, the GS-14 Criminal Investigator position you occupied in [xxx] was targeted to be moved to [xxx]. However, before the agency issued a formal directed reassignment, you appealed to the Hardship Review Board and volunteered to accept a GS-13 position with the agencys Office of Internal Affairs. You assert that your request was contingent on receiving retained pay.

Based on a recommendation from the Hardship Review Board, the agency agreed to place you in the GS-13 position. The terms and conditions of this assignment were contained in an April 20, 1994 memorandum, copy enclosed. This memorandum expressly stated that you would not receive "save-pay" at (your) present GS-14 level, since this is not allowable for voluntary downgrades." You signed the document immediately below the statement, "I voluntarily request downgrade to the position of GS-13, SS/A, OE, [xxx]".

Given this document, we have no grounds to conclude that your downgrade was anything but voluntary. In your March 19 letter, you asked us to address several other issues. However, this would require an investigation that is beyond the scope of our review authority. We may settle claims based only on the legal liability of the United States based on the facts as established the agency and evidence submitted by the claimant. Our review is based only on the written record. We do not have authority to further investigate claims or conduct hearings. See 4 C.F.R. Part 31.

Thus, we are unable to determine whether the agency discriminated against you or treated other employees differently. You may be able to present these issues to other administrative agencies, depending on the type of discrimination you are alleging. You also may pursue this claim in an appropriate United States court, where you might have access to the types of discovery not available here, e.g., depositions, interrogatories and requests for the production of documents. Of course, this is a matter for you to personally pursue. Accordingly, we must sustain the denial of your claim.

Sincerely,

Paul Britner

Senior Attorney