Entitlement to Retroactive Promotion With Backpay

An advance decision was requested regarding the implementation of a grievance examiner's recommendation that an employee should be granted a retroactive promotion with backpay. The recommendation may not be effected even though the grievance examiner found that an improper evaluation of the employee's abilities led to his not being promoted since promotion is a discretionary function of the agency and applicable statutes stipulate that retroactive promotion is only allowed where there is a violation of a nondiscretionary function or duty. The fact that other employees similarly situated were promoted did not serve as justification for retroactively promoting the employee since employees are not entitled to identical treatment in promotion actions.