Office of Merit Systems Oversight and Effectiveness

Date: January 4, 2001
File Number: [01-0012]
Matter of: [Claimants Name]

OPM Contact: Melissa A. Drummond

The claimant was a GS-13 Lead Social Insurance Specialist (organizationally recognized as a team leader) at the [agency]. He was assigned to the Division of Insurance Program Eligibility Quality (DIPEQ), Office of Assistance and Insurance Program Quality (OAIPQ), Office of Quality Assurance and Program Assessment, Office of Finance, Assessment, and Management. The claimant asserts that he is entitled to back pay for performing the duties of a higher-graded position. The claimant states that he was assigned to higher-level duties from October 1, 1994 through December 31, 1999, when he retired from Federal service. 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 agency 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. 31.71. 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 provided a list of his duties and major activities, which he asserted to be equivalent to the GS-14 level. He further stipulated that, if he had been recognized for performing at the GS-14 level, he would have been eligible to compete for the GS-15 level. The agency reports, however, that, while the claimant carried out responsibilities within the scope of his GS-13 position, he did not perform at the GS-14 level. The agency provided the following signed statements to this effect from agency representatives for the claim period:

• [name], Associate Commissioner for Facilities Management, for the period from October 1994 through February 1996,
• [name], Director of OAIPQ, for the period from February 1996 to February 1998, and
• [name], Director of OAIPQ and Director of DIPEQ, for the period from February 1998 through December 31, 1999.

In addition, the agency provided a signed statement from the claimant's first line supervisor, [name], Deputy Director, DIPEQ, which states:

[claimant] did not perform the program analyst function from 10/94 through 2/96, nor from 02/98 through 12/31/99. At no time (5/97-11/97, 12/97-03/98 and 8/98) did [claimant] act as the Deputy Director.

Therefore, the agency disagrees with the claimants request for back pay based on the performance of higher-graded duties.

The claimant also states that, due to organizational and staffing changes, he "was faced with a large burden to perform the functions of three GS-13 team leaders." Unfortunately, volume of work does not automatically constitute the upgrade of a position. 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 provided a list of witnesses with 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, 19882. 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.

 

1 On October 31, 1996, OPM published a Federal Register notice stating that it would apply to any authority transferred from GAO any applicable GAO regulations in effect at the time of the transfer. 61 Fed. Reg. 51730.
2 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.