Office of the General Counsel

Date: [XXX]
Matter of: [XXX]
File Number: S9700486.2

OPM Contact: Joann Charleston

A [agency] employee requests reconsideration of our settlement denying his claim for back pay. The settlement is affirmed.

The employee filed an administrative grievance claiming back pay for duties performed in a higher-graded postion. The agency, in order to resolve the grievance offered the claimant a letter of misassignment which was to be used to compete for General Foreman positions under the agencys Merit Promotion Program. In his appeal the claimant disputes that he agreed that the agencys letter of missasignment constituted a settlement of his claim.

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. B-240239, October 29, 1990.

As stated in our settlement employees are not required to use the administrative grievance procedure before submitting claims to this office. However, when an employee has chosen to do so and reached an agreement with the agency, we will not use our claims settlement authority to interfere with that agreement.

This Office settles claims on the basis of the written record, and the burden of proof is on the claimant to establish the liability of the United States and his or her right to payment. B-205282, June 15, 1982. Since the claimant has not presented clear and convincing evidence that he did not have an agreement with the agency, we accept the facts as asserted by the agency.

Accordingly, we sustain the denial of the settlement.