Office of the General Counsel

Date: October 6, 2000
Matter of: [Claimant]
File Number: 00-0024

OPM Contact: Melissa Drummond

The claimant, a xxx at the xxx, asserts that he is entitled to back pay for performing the duties of a higher-graded position. The claimant states that he performed the duties of a xxx at the GS-x level from xxx through xxx, before being promoted to the GS-x level in xxx. For the reasons discussed herein, the claim is denied.

To establish a claim for back pay 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 does not assert that applicable regulations or agreements required that he receive a temporary promotion. In fact, the claimant has provided no official documentation for substantial portions of the claim. Generally speaking, where the official record does not support a claim, the claim must be denied. See 4 C.F.R. 31.7. See also Nathaniel C. Carter, B-238487, May 25, 1990; Jones and Short, B-205282, June 15, 1982; and Wade B. Bumgardner, B-184795, August 5, 1976. However, the lack of official documentation is only one of the reasons why the claim for back pay has been denied.

The claimant provides a list of duties, which he asserts to be equivalent to the GS-x level. The agency reports that, while the claimant performed duties, it was unlikely that any of this work was higher than the GS-x level. The agency cites that the claimants former supervisors indicated that most of the claimants written assignments for the periods in question needed extensive revisions and that the claimant had to be accompanied to meetings in order to defuse tense situations with customers. Therefore, the agency disagreed with the claimants request for back pay based on the performance of higher-graded duties.

In addition, the claimant states that "the merging of duties (i.e. the GS-x pd with the

GS-x employee relations specialist pd) warranted an upgrade". This is untrue. Volume of work does not automatically constitute the upgrade of a position. This is commensurate with a response from the Office of Special Counsel for a complaint filed by the claimant for back pay (OSC File No. MA-00-0916, dated May 16, 2000). OSC findings state that "you have not provided sufficient information tending to show that you performed work at the GS-x level. The complexity of your assignments and your level of responsibility do not appear to have exceeded the GS-x level as described in the Office of Personnel Management (OPM) position classification standard for Labor Relations Series, GS-233. Further, adding GS-x work to the position would not warrant upgrading the position to the GS-x level. No such provision exists in the classification standard for the Labor Relations Series. Finally, in the absence of a determination by an appropriate authority that an unjustified or unwarranted personnel action was taken against the appellant, back pay will not be awarded under 5 U.S.C. 5596 and 5 CFR 550.804(a). See Pickard v. Department of Transportation, 25 M.S.P.R. 404 (1984)."

The claimant has requested a hearing on the merits of his claim. 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. The agency reported that the claimant had not performed the duties of a higher graded position. Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. 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.

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

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Effective June 30, 1996, the authority of the General Accounting Office to adjudicate the claims of federal civilian employees for compensation and leave was transferred to OPM. See the Legislative Branch Appropriations Act, 1996, Pub. L. No. 104-53, 211, 109 Stat. 514. Subsequent to the enactment of Pub. L. No. 104-53, Congress amended 31 U.S.C. 3702 to codify the transfer. See the General Accounting Office Act of 1996, Pub. L. No. 104-316, 202 (n), 110 Stat. 3826.