Office of the General Counsel

OPM Ref. # 1997-00497

Dear Mr. [xxx]:

We have reviewed the backpay claim that you submitted by letter dated April 23, 1997. For the reasons discussed herein, your claim is denied.

You claim that from November 1, 1993 to January 6, 1996, you were detailed from a Group Chief position with the [agency] to an Assistant Foreperson position, a position with more responsibility and higher salary. On January 7, 1996, you were promoted to the Assistant Foreperson position.

To establish a claim for backpay based on a detail to a higher-graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion for such a detail to a higher-graded position and (2) that the claimant was, in fact, detailed to a higher-graded position. See Philip M. Brey, B-261517, December 26, 1995; Everett Turner and David L. Caldwell ("Turner-Caldwell III"), 61 Comp. Gen. 408 (1982); and Albert C. Beachley and Robert S. Davis, 61 Comp. Gen. 403 (1982).

By letter dated October 15, 1996, [xxx], [agency] Director of Personnel, acknowledged that "[a] supervisory [agency] employee who has been detailed for more than 120 consecutive days to an established higher-paid position and who is qualified for the position is entitled to a retroactive promotion beginning on the 121st day of the detail. However, while your claim satisfies the first requirement, it does not satisfy the second requirement because there is an irreconcilable factual dispute in the record as to whether you had, in fact, been detailed to the higher-graded Assistant Foreperson position during the periods covered by your claim.

In a memorandum dated September 19, 1996, the Superintendent, [xxx], reported that from November 1, 1993 to January 31, 1994, the Assistant Foreperson position was filled by [xxx]; that from January 1994 to July 26, 1994, the Assistant Foreperson position was filled by [xxx]; and that after Ms. [xxx]' departure, Mr. [xxx] determined that the Assistant Foreperson position would not be filled. Mr. [xxx] continued that:

In late 1995, I agreed to fill the Assistant Foreperson position with the understanding that the Group Chief position would be abolished.

In your letter of April 23, 1997, you insist that on November 1, 1993, Mr. [xxx] began serving as a Group Chief while you performed the duties of the Assistant Foreperson. As concerns Ms. [xxx], you state that she fulfilled other supervisory duties and never worked.

Where there is an irreconcilable dispute of fact, the burden of proof is on the claimant to establish the liability of the United States. 4 C.F.R. 31.7 (1989). See Jones and Short, B-205282, June 15, 1982. The claimant has the burden of proving by clear and convincing evidence that he or she was detailed to and performed the duties of a higher-graded position. See, e.g., Dennis F. Morgan, B-203926, Sept. 22, 1981. Where the agency's determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

Sincerely yours,

Murray M. Meeker

Senior Attorney