Office of the General Counsel

Date: May 25, 2000
Matter of: [Claimant]
File Number: 00-04078

OPM Contact: xxx

The claimant, a GS-x employee of the xxxx asserts that he is entitled to back pay for serving on a detail to a higher graded position. The claimant states that he served as xxxx from xxxx to xxxx. The claimant was temporarily promoted and compensated at the GS-x level from xxxx to xxxx. However, he is requesting equivalent compensation for the remaining 11- month period. For the reasons discussed herein, the claim is denied.

Based on information from the agency, there is no documentation in the official personnel file to validate that the claimant performed GS-x duties without benefit of detail or promotion. The claimant was detailed to the GS-x position from xxxx to xxxx. He was also detailed to an ungraded set of duties from xxxx to xxxx. (A personnel action which terminated the temporary promotion was effective xxxx.) 1994 details were governed by the Federal Personnel Manual, Chapter 335 (1-5)(a)(1) which stated that "competitive in service procedures must be used for temporary promotion over 120 days in higher graded positions." While Federal law prohibits agencies from detailing employees for more than 120 days unless the detail has been renewed, it is well settled that the failure of an employing federal agency to comply with the 120 days restriction does not result in entitlement to back pay. United States v. Testan, 424 U.S. 392, 400 (1976); Wilson v. United States, 229 Ct. Cl. 510 (1981); and Everett Turner ("Turner-Caldwell III"), 61 Comp. Gen., 408, May 25, 1982.

In addition, the agency states that the claimant received xxxx as the result of an Equal Employment Opportunity (EEO) settlement in xxxx. According to the agency, the claimant requested that the issue of the "set of duties versus a temporary promotion" be included within the settlement and that the settlement did indeed cover both issues. The agency has substantiated this by submitting a sworn affidavit from the districts labor counsel, who has served in that capacity since xxxx and represented the district in the claimants EEO complaint and settlement.

The affidavit states that, during xxxx, EEO and agency regulations allowed for consolidating various, unrelated issues into one EEO complaint. This allowed the district to include the "set of duties versus temporary promotion" issue in the EEO complaint, although it might appear that there was only one issue which had been filed and counseled. In essence, the negotiations of the EEO settlement agreement overcame and obviated the amending of the claimants complaint to specifically include the "set of duties versus temporary promotion" issue.

The Office of Personnel Management (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.

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.