Office of the General Counsel

Date: January 15, 1998
Matter of: [xxx]
File Number: s9700465

OPM Contact: Jo-Ann Chabot

This concerns a claim for retroactive promotion and back pay or, alternatively, a lump sum payment equal to the pay which the claimant would have received in a position in the Senior Executive Service (SES). The claim is based on an assertion that, although the claimant was not formally detailed to an SES position, he served in such a position for three years performing all the duties of that position. The claim is denied for the reasons stated below.

The claimant, a retired federal employee, formerly was employed as a Financial Systems Officer, GS-15, in the Office of the Chief Financial Officer (CFO) at a federal department. His supervisor, a member of the SES, was the Director of the Office of [xxx] within the Office of the CFO. The claimant was the Deputy Director of the [xxx] and states that his supervisor left the position of Director of [xxx] in February 1994 for a special assignment in the Office of the CFO. He states that, although his supervisor remained the Director of record at the [xxx], the supervisor was required to work full-time on this special assignment. The claimant asserts that, consequently, he became responsible for all of his supervisor's duties and served as the Acting Director of the [xxx] for more than 1,000 days. Accordingly, the claimant asserts that he was not serving in the capacity of Acting Director and that he effectively had been detailed to the Director's position. He states that, to the best of his knowledge, the department did not issue any Standard Form 50 or Standard Form 52 to memorialize his alleged detail, and there was no indication that the department notified the Office of Personnel Management (OPM) concerning the alleged detail. The department denied the claimant's administrative grievance and request for relief.

To establish a claim for backpay based on a detail to a higher-graded position, a claimant must show that: (1) an agency regulation requires a temporary promotion for a detail to a higher-graded position; and (2) he or she actually was detailed to a higher-graded position. Philip M. Brey, B-261517 (December 26, 1995; Martin Kirchhausen, B-261661 (December 26, 1995). The claimant has the burden of proving that he was detailed to and performed the duties of the higher-graded position. Philip M. Brey, supra; Martin Kirchhausen, supra. A "detail" is an employee's temporary assignment to a different position involving duties other than the duties he or she regularly performs. Martin Kirchhausen, supra. An employee's assumption and performance of the duties of another position, when specifically required by the employee's position description, does not constitute a detail to the other position because the employee is carrying out duties that fall within the scope of his or her own position. Philip M. Brey, supra; Martin Kirchhausen, supra. This applies even when the employee performs in an acting capacity for an extended period of time. Martin Kirchhausen, supra.

The claimant's position description required him to serve "principally as an operational manager and secondly as an alter ego to the Director," his supervisor. The position description also provided that "the Director is the official custodian of the Department's financial information, and his alter ego, the Financial Systems Officer [claimant] shares in the responsibility for maintaining centralized control accounts" and other responsibilities. Finally, the position description provided that, "[i]n the Office Director's absence, [the claimant] plans, supervises and directs all activities of the Office which is comprised of 63 employees in 3 subordinate divisions." The claimant's position description shows that he was required to assume and perform the duties of his supervisor, the Director of the [xxx] during the Director's absence. Accordingly, the claimant was carrying out duties that were within the scope of his own position description while he served as the Acting Director of [xxx].

Moreover, the department provided a Standard Form 52 (Request for Personnel Action) showing that the claimant's supervisor was detailed from May 1, 1994 to August 28, 1994, a period of 120 days, to "unclassified duties" to perform CFO/ Labor Management Partnership functions, the special assignment referenced by the claimant. The department stated that there is no documentation reflecting that the supervisor's detail was extended beyond the 120 days approved by the Secretary. Thus, it appears that the claimant's supervisor was not detailed to perform CFO/Labor Management Partnership functions for as long as the claimant describes. The department further noted that, according to its Acting CFO, the claimant's supervisor was regularly consulted while he was on detail for input in office management decisions such as strategic planning, organizational changes, and other decisions. The Acting CFO also noted that the claimant continued to perform the operations functions assigned to him as the Deputy Director of the [xxx] during that time. Thus, it also appears that, even while he was on detail, the claimant's supervisor continued to perform some of his regularly-assigned duties and responsibilities. Finally, the claimant has not submitted any documentary evidence, other than his assertions, to show that he in fact was detailed to his supervisor's position.

The claimant has not met his burden of proving that he was on detail to position of the Director of the [xxx]. Therefore, his claim for retroactive promotion and back pay or, alternatively, a lump sum payment equal to the pay which the claimant would have received in a position in the SES, is denied.