Office of Merit Systems Oversight and Effectiveness

Date: May 21, 2001
File Number: [01-0026]
Matter of: [Claimant]

OPM Contact: Melissa Drummond

The claimant is an employee of the [agency]. She has filed a claim because she does not agree with her agency's determination to deny her request for pay retention. For the reasons stated below, the claim is denied.

We acknowledged receipt of this claim on March 22, 2001 and requested an administrative report from the agency on the same date. The agency administrative report was received on May 17, 2001. Based on information provided by the agency, the circumstances giving rise to the claim are as follows. The claimant was a Secretary, GS-318-6, with the [agency] in [city, state]. She voluntarily applied for a position as Secretary, GS-318-6, with the [another agency] in [city, state]. She was selected for, offered, and consequently accepted the position. The effective date of her reassignment was October 13, 1996. In August 2000, the claimant contacted the agency's personnel office about receiving pay retention for the 1996 reassignment.

The claimant provides additional information pertaining to her specific situation. She states that she was repeatedly advised by the [agencys'] Regional Director in [city, state] that the office was subject to closure and that it would be in her best interest to look for employment elsewhere. She eventually found employment in [city, state] and accepted a lateral position in 1996. She contends that she was promised the [city, state] position for the same basic salary as her position in [city, state]. She states, however, that when she received her Notification of Personnel Action and realized she wasn't receiving the same basic salary rate as before, she began raising questions about her pay in order to get the salary that she believed she was due.

The claimant has been told that the base salary in [city, state] is higher than in [city, state]; therefore, the discrepancy between her previous salary and her current salary. However, she believes that this "is clearly irrelevant, as the job was presented and accepted on the specific term of receiving the same basic salary." She contends that her point of inquiry is not that [state] and [state] are different basic salary areas. Rather, it is the terms and conditions of her reassignment, and the fact that she believes that she was discriminated against by being paid at a lower salary than she was receiving and than she accepted with the reassignment.

Further information from the agency finds that, prior to the reassignment, the personnel office forwarded a confirmation letter, dated September 20, 1996, to the claimant in which she was told what her grade and salary would be. A copy of this letter was provided with the agency's administrative report. The letter states that it is a confirmation of the claimant's "selection for the position of Secretary (OA), GS-318-6, based on a $24,105 per annum rate (plus a 22.5% Cost of Living Allowance) with the [name] Office, [city, state]."

The fact that this letter specifically states the per annum salary as well as the cost of living allowance (COLA) for the position in [city, state] indicates that the claimant was informed of the amount that she would be compensated for this position. Neither the claimant nor the agency has provided further documentation to show of any other agreement or official letter that would differ from the salary and COLA information in this letter. Although the claimant may state that she was not informed of this information or was provided different information, it is well established that a claim may not be granted based on misinformation that may have been provided by Federal employees. See Richmond v. OPM,496 U.S. 414, 425-426 (190); Falso v. OPM, 116 F.3d459 (Fed Cir. 1997); and 60 Comp. Gen. 417 (1981).

The claimant cites 5 CFR 536.104(a)(4) as a rationale for granting her claim. It states:

(a) Pay retention shall apply to any employee whose rate of basic pay would otherwise be reduced: . . . (4) As the result of the placement of an employee into a non-special rate position or into a lower special rate position from a special rate position; . . . (Emphasis added)

Based on our interpretation, this situation only applies to the placement of an employee into a position based on a management action or decision. The information provided by the agency indicates that the claimant's reassignment was voluntary and not the result of a management decision. Although management may have advised the claimant to look for other employment due to a potential office closure, this does not meet the eligibility criteria for mandatory pay retention.

5 CFR 536.104 lists other situations in which there is mandatory entitlement to pay retention. None of these situations, however, appear to apply to this case. Pay retention is not applicable when an employee is reduced in grade or pay at the employee's request.

The claimant provides no evidence that the agency acted in an arbitrary or capricious manner in reassigning her from a Secretary, GS-318-6, position in [city, state] to a Secretary, GS-318-6, position in [city, state]. Rather, she voluntarily applied for the position, was offered the position based on a September 20, 1996 letter, and subsequently accepted the position. The claim is denied.

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. 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 the Office of Personnel Management. Nothing in this settlement limits the claimants right to bring an action in an appropriate United States Court.