Office of the General Counsel

Date: October 27, 2000
Matter of: [Claimant]
File Number: 00-0006

OPM Contact: Melissa Drummond

The claimant is an employee of the [agency] in [city, state]. He disagrees with the Within-Grade Increase (WGI) waiting date, established by his agency. We accepted this claim on May 4, 2000 and received the agency administrative report on September 26, 2000. For the reasons discussed herein, his claim is denied.

Based on the claimants work history provided by the agency, the claimant received a career-conditional appointment with the [previous agency] in June 1983 and was promoted into a Wildlife Biologist position the following year. He received promotions and WGIs over the next six years. On December 16, 1990, he received a WGI when he went from a Wildlife Biologist, GS-0486-11, step 3 to a Wildlife Biologist, GS-0486-11, step 4. On September 8, 1991, the claimant took a change to lower grade to a Wildlife Biologist, GS-0486-09, step 10. Over the next seven years, the claimant occupied several positions including a temporary Wildlife Biologist position, GS-0486-07, step 1, beginning in March 1998. On June 30, 1998, the claimant was selected for a permanent Wildlife Biologist position, GS-0486-11, under the [agency] Demonstration Project authority. His actual report date was delayed, however, and the claimant did not report to duty until September 27, 1998.

At the time of hire in June of 1998, the claimants pay was set at step 4 of the GS-11 pay scale and the WGI waiting period commencement date was established as June 30, 1998. It is the agencys position that it was an equivalent increase when the claimant went from the GS-07, step 01 temporary appointment to the GS-11, step 4 permanent appointment. Therefore, the waiting period should begin at the date of his permanent appointment.

The claimant does not consider his most recent appointment to the GS-11 level to be an equivalent increase. Rather, he believes that the required waiting period of 104 weeks was accomplished between December 12, 1990 and September 8, 1991 (the time during which he occupied a GS-11 position at the FWS) and June 30, 1998 and October 5, 1999 (the beginning portion of time in his current GS-11 position with the agency).

The regulatory provision that addresses the commencement of a waiting period for WGIs is found in CFR 531.402, which states:

A waiting period begins: (1) on the first appointment as an employee of the Federal Government, regardless of tenure; (2) on receiving an equivalent increase: or (3) after a period of nonpay status or a break in service (alone or in combination) in excess of 52 calendar weeks, unless the nonpay status or break in service is creditable service under 531.406 of this subpart.

Based on the claimants work history, (1) and (3) are not applicable. We concur with the agencys determination that the claimants appointment into a Wildlife Biologist position, GS-0486-11, step 4 from a Wildlife Biologist position, GS-0486-07, step 01 on June 30, 1998 was an equivalent increase. See Comp Gen B-193336, March 23, 1979; B-193394, dated March 23, 1979.. Therefore, the commencement of the WGI waiting period begins on the date of the appointment - June 30, 1998.

The claimant is correct in that the waiting period does not have to be continuous. A break in service of less than 52 weeks still counts toward the next waiting period, extending it as stated in CFR 531.406. But this is irrelevant since the equivalent increase, the claimants promotion from the GS-0486-07 to the GS-0486-11, commenced a new waiting period. Hence, the claimants time spent in a previous GS-11 position in 1990-91 cannot be used to establish the commencement date of the current waiting period. The claim is denied.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual 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. We find that the agency has appropriately compensated the claimant in their application of the WGI process. Therefore, the claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.