Office of Merit Systems Oversight and Effectiveness

Date: December 6, 2001
File Number: [01-0042]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant, an employee of the [agency], is requesting back pay for reclassification. The claimant is a member of a bargaining unit covered by a Memorandum of Agreement (Agreement) between [installation] and American Federation of Government employees, Local 3116. Article 23, Section 2(b)((1) of the Agreement specifically excludes matters pertinent to classification of a position not resulting in reduced pay or grade. We acknowledged receipt of this claim on July 25, 2001. The agency administrative report was received on October 9, 2001. For the reasons discussed herein, the claim is denied.

The claimant provides a description of the actions that he took to resolve the issue of the classification of his position from the GS-9 grade level to the GS-11 grade level. The claimant stated that he was detailed to a Ground Safety Manager, GS-0018-09 position, on September 5, 1995. He stated that his supervisor told him that the position would be reclassified and upgraded to a GS-11. According to the claimant, he was permanently reassigned from a Program Analyst, GS-0343-09, Step 4, to a Ground Safety Manager, GS-0018-09, Step 4, on March 24, 1996. On April 13, 2000 the claimant was notified that his position was reclassified and upgraded to GS-0018-11. The claimant's position upgrade was effective May 7, 2000. On May 16, 2000, the claimant requested back pay for the agency's negligent failure to upgrade the position in November 1995 and egregious neglect thereafter. The agency denied the request on June 13, 2000. The claimant filed with the Merit System Protection Board (MSPB) on August 31, 2000, and MSPB made the decision that it did not have jurisdiction on the classification issue.

The agency's response states that the claimant was detailed to the GS-0018-09, Safety and Occupational Health Specialist, Position Description No. (PD#) 79790, position on September 3, 1995. After returning to his permanent position, Program Analyst, GS-0343-09, for one day, he was permanently reassigned to the Safety and Occupational Health Specialist, GS-0018-09, position on March 24, 1996. The agency states that it conducted desk audits in the spring and summer of 1999 because the agency's earlier efforts to obtain information to reclassify the positions were unsuccessful. The classification of similar positions was reviewed with [several installations agency-wide]. The efforts to reclassify the Safety and Occupational Health Specialist tenant positions within the [installation] culminated on April 13, 2000.

To establish a claim for back pay based on a detail to a higher-graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion for such a detail to a higher-graded position, and (2) the claimant, was in fact, detailed to a higher-graded position. See Philip M. Brey, B-261517, December 26, 1995; Martin Kirchhausen, B-261661 (December 26, 1995); and Everett Turner and David L. Caldwell ("Turner-Caldwell III"), 61 Comp. Gen. 408 (1982). The claimant has the burden of proving that he was detailed to and performed the duties of the higher-graded position. Philip M. Brey, supra; Martin Kirchhausen, supra.

The agency's response references the U.S. Supreme Court case of U.S. V Testan, which states at 404 U.S. 402(9):

That an individual is entitled only to the pay of the position to which is appointed when the court says "there is no claim here that either respondent has been denied the benefit of the position to which he was appointed. The claim instead is that each has been denied the benefit of a position to which he should have been, but was not appointed. The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.

The Civilian Personnel Law Manual states:

There is no entitlement to back pay for the period prior to reclassification of incumbent's position. Alleged delays in processing job descriptions to a higher-grade position do not provide a basis for back pay. Where classification action rested with headquarters office, the employee may not be promoted prior to date of final agency action. B-200638, October 9, 1981. See also B-173783.140, March 22, 1977.

The claimant stated that his predecessor informed him, in September 1995, that the claimant's position would be reclassified and upgraded to a GS-11. Although the claimant states that he was given this information or was provided different information, it is well established that a claim may be not granted based on misinformation that may have been provided by Federal employees. See Richmond v. OPM, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed Cir. 1997); and 60 Comp. Gen. 417 (1981).

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, March 15, 1982. The agency states that the claimant was in a duly appointed properly classified GS-09 position until April 13, 2000 when he was appointed to his current GS-11 position. Since the GS-11 position was not officially established by the agency prior to May 7, 2000, there is no basis for compensating the claimant from November 1995 to May 6, 2000. 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.