Office of Merit Systems Oversight and Effectiveness

Date: December 4, 2001
File Number: [01-0048]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant asserts that he is entitled to back pay for performing duties of a higher-graded position. He is a Civil Engineer, GS-810-12, at the [agency, location]. The claimant filed a claim for back pay with the U. S. General Accounting Office (GAO) on July 23, 2001. On August 1, 2001, GAO determined that the Office of Personnel Management (OPM) had jurisdiction to adjudicate the claim for back pay for higher-level duties. We received the claim on August 7, 2001, and the agency's administrative report on October 17, 2001. For the reasons discussed herein, the claim is denied.

The claimant asserts, as a result of a new organizational structure, that he was officially assigned as Acting Program Support Staff Manager, GS-301-13, during the period from October 1, 1995 to September 30, 1997. The State Director of the [agency component] signed four different copies of The Delegation Of Acting Program Support Manager forms to designate the claimant as Acting Program Support Manager during the periods October 1, 1995 to December 31, 1995; January 1, 1996 to April 30, 1996; May 1, 1996 to August 31, 1996; and August 30, 1996 to December 31, 1996. The claimant states that he was temporarily promoted for the period of January 1, 1997 to April 30, 1997. He asserts that he continued to be in charge of the Support Staff Supervision until September 28, 1997, when he was assigned to the [name] Division as a State Engineer, GS-12.

The claimant and the agency agree that the Program Support Staff Manager position was created by one of the many reorganization staffing plans for the 1995 Transfer of Function (TOF) and included in the proposed staffing plan submitted by [agency component] State Offices. However, the agency states that the claimant was "neither officially detailed nor appointed to the Acting Program Support Staff Manager position." He was designated by the State Director to act in that capacity with full authority. However, these positions were never officially established due to the reduction-in-force (RIF) in [location]. This designation was issued as an internal memo and never recorded on a Standard Form 52, Request for Personnel Action.

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.

There are several Comptroller General decisions, which address this issue. An employee is entitled to salary only for the position occupied, even when performing duties of a higher-graded position. B-240239, October 29, 1990. Federal regulations do not mandate temporary promotions to employees detailed to perform higher-graded duties for more than 120 days, and therefore cannot receive back pay for said duties. Matter of Evelyn O. Cheeseboro, B-217830, August 29, 1985. A federal employee performing the duties of a higher-graded position is not entitled to the salary of the position until the employee is actually promoted to the higher-graded position. Cynthia A. Griffin, B-254444, December 8, 1993.

In addition, the agency's response states, ". . .the reference Mr. Espendez uses, specifically [agency component] Instruction 2051-A, 2051.2(b), 'Appointments over 120 days or a series of appointments over 120 days where there is no break in service,' refers to any personnel action that brings an individual onto the rolls of [agency component]. The Instruction does not state nor does it infer that should such actions occur, employees are entitled to back pay. Not only was [claimant] already on our rolls, there were no official personnel actions taken to reflect any change in salary due to promotion, temporary or permanent, during this timeframe."

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, 1998. An employee is not entitled to the salary of the higher grade until he or she is actually promoted to the position. Cynthia A. Griffin, supra. The agency reported that the claimant was not officially appointed or detailed to a higher-graded position and a personnel action was never documented for the claimant. 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. Since the claimant was never officially appointed or detailed to the Program Support Staff Manager position, 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.