Office of the General Counsel

Matter of: [XXX]
File Number: S9701150

OPM Contact: Murray M. Meeker

By letter dated October 1, 1997, the claimant sought back pay for service she performed at the [xxx]Commissary during the period from January 1993 to February 1995. The claimant reported that she had initially accepted a position at the Commissary as a cashier at grade GS-3, but that after approximately three days, she began receiving training to be an Administrative Secretary, and that she was subsequently offered an Administrative Secretary position to be effective upon the retirement of the person who had been holding that position. The claimant alleged that she had performed the duties of an Administrative Secretary at the GS-7 level for nearly two years. For the reasons discussed herein, the claim is denied.

To establish a claim for backpay based on the performance of the duties of a higher-graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion 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).

The claimant reported that she received a temporary promotion, but that it lasted only about 60 days. The claimant does not assert that applicable regulations or agreements required that she receive a temporary promotion.

The [agency] reported that on May 30, 1993, the claimant was appointed to a Sales Store Checker, GS-3, position; that on January 9, 1994, she was temporarily promoted to the position of Secretary, a GS-5 position, for a period not to exceed 60 days; and that the temporary promotion expired on February 2, 1994. [Agency] acknowledged that the change to lower grade action had not been timely processed. However, as concerns the former employee's claim that she performed work at a higher grade level, [agency] reported that while the claimant performed clerical work in the administrative office, it was unlikely that any of this work was higher than the GS-3 level.

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.

Accordingly, because the claimant has not established that, in fact, she was detailed to the higher-graded position after her initial temporary appointment expired, her claim is denied.