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B-165571, JANUARY 31, 1969, 48 COMP. GEN. 502

B-165571 Jan 31, 1969
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WHILE THE EMPLOYEE'S COMPLAINT WAS PENDING IN THE DEPARTMENT UNDER PROCEDURES PRESCRIBED IN SUBPART B. HE WAS PROMOTED TO GRADE GS-11 WITHOUT REGARD TO HIS COMPLAINT. A FINAL DECISION THAT THE COMPLAINT WAS JUSTIFIED WAS ISSUED ON AUGUST 29. WE BELIEVE IT PERTINENT TO POINT OUT THAT IT IS WELL SETTLED LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. PART 713 OF THE CIVIL SERVICE REGULATIONS WERE ISSUED PURSUANT TO THE PROVISIONS OF 5 U.S.C. 7151 (AS DELEGATED BY EXECUTIVE ORDER NO. 11246. RETROACTIVE REMEDIAL ACTION IN THE EVENT OF A FINDING OF DISCRIMINATION IS NOT SPECIFIED IN SUCH LAW OR REGULATIONS.

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B-165571, JANUARY 31, 1969, 48 COMP. GEN. 502

COMPENSATION - PROMOTIONS - EFFECTIVE DATE - REGULAR V DISCRIMINATION ACTION PROMOTIONS THE REMEDIAL ACTION OF RETROACTIVELY PROMOTING AN EMPLOYEE ALLEGING RACIAL DISCRIMINATION AFTER THE EMPLOYEE HAD BEEN PROMOTED FROM GRADE GS-9 TO GRADE GS-11 WITHOUT REGARD TO THE COMPLAINT DOES NOT ENTITLE THE EMPLOYEE TO THE HIGHER GRADE SALARY FOR THE PERIOD PRIOR TO THE EFFECTIVE DATE OF HIS REGULAR PROMOTION, NEITHER 5 U.S.C. 7151 NOR THE IMPLEMENTING CIVIL SERVICE REGULATIONS PROVIDING FOR RETROACTIVE REMEDIAL ACTION IN THE EVENT OF A FINDING OF DISCRIMINATION. FURTHERMORE, THE EMPLOYEE MAY NOT BE PAID ADDITIONAL COMPENSATION UNDER THE "BACK PAY STATUTE" (5 U.S.C. 5596), OR ON THE BASIS OF A RETROACTIVE CORRECTION OF AN ADMINISTRATIVE ERROR, THE FAILURE TO TIMELY PROMOTE THE EMPLOYEE BEING NEITHER THE POSITIVE ADVERSE ADMINISTRATIVE ACTION REQUIRED FOR PAYMENT UNDER THE STATUTE NOR AN ADMINISTRATIVE ERROR.

TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, JANUARY 31, 1969:

WE REFER TO THE LETTER OF NOVEMBER 1, 1968, FROM THE FORMER SECRETARY OF HOUSING AND URBAN DEVELOPMENT REQUESTING OUR DECISION CONCERNING THE IMPLEMENTATION OF A DETERMINATION OF THE EQUAL EMPLOYMENT OPPORTUNITY OFFICER OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT TO THE EXTENT THAT IT WOULD INVOLVE THE RETROACTIVE PROMOTION OF AN EMPLOYEE.

THE EMPLOYEE CONCERNED FILED A COMPLAINT ON APRIL 14, 1967, STATING IN EFFECT THAT HE HAD NOT BEEN PROMOTED FROM GRADE GS-9 TO GRADE GS-11 AS THE RESULT OF RACIAL DISCRIMINATION. ON FEBRUARY 25, 1968, WHILE THE EMPLOYEE'S COMPLAINT WAS PENDING IN THE DEPARTMENT UNDER PROCEDURES PRESCRIBED IN SUBPART B, PART 713 OF THE CIVIL SERVICE REGULATIONS, HE WAS PROMOTED TO GRADE GS-11 WITHOUT REGARD TO HIS COMPLAINT. A FINAL DECISION THAT THE COMPLAINT WAS JUSTIFIED WAS ISSUED ON AUGUST 29, 1968. THAT DECISION SPECIFIED THAT REMEDIAL ACTION SHOULD BE TAKEN IN THE FORM OF A RETROACTIVE PROMOTION FOR THE EMPLOYEE EFFECTIVE MARCH 1, 1967.

INITIALLY, WE BELIEVE IT PERTINENT TO POINT OUT THAT IT IS WELL SETTLED LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. GANSE V UNITED STATES, 180 CT. CL. 183 (1967).

THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS OF SUBPART B, PART 713 OF THE CIVIL SERVICE REGULATIONS WERE ISSUED PURSUANT TO THE PROVISIONS OF 5 U.S.C. 7151 (AS DELEGATED BY EXECUTIVE ORDER NO. 11246, SEPTEMBER 24, 1965) WHICH DIRECTS THE PRESIDENT TO USE HIS EXISTING AUTHORITY TO INSURE EQUAL EMPLOYMENT OPPORTUNITY WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN. HOWEVER, RETROACTIVE REMEDIAL ACTION IN THE EVENT OF A FINDING OF DISCRIMINATION IS NOT SPECIFIED IN SUCH LAW OR REGULATIONS. IT WAS SUGGESTED THAT RETROACTIVE COMPENSATION IN THIS CASE MIGHT BE PROPER UNDER THE "BACK PAY STATUTE," NOW CODIFIED IN 5 U.S.C. 5596 OR UNDER OUR DECISIONS WHICH PERMIT RETROACTIVE CORRECTION OF ADMINISTRATIVE ERRORS. 5 U.S.C. 5596 (B) PROVIDES:

(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR DEDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE---

(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION.

THE WORDS OF THE ABOVE SECTION INDICATE THAT A POSITIVE ADMINISTRATIVE ACTION ADVERSE TO AN EMPLOYEE MUST BE THE BASIS FOR BACK PAY RATHER THAN AN OMISSION OR FAILURE TO TAKE ACTION FOR AN IMPROPER REASON. IN THAT CONNECTION THE LEGISLATIVE HISTORY OF THAT PROVISION SHOWS THAT THE CONGRESS INTENDED TO ENACT A UNIFORM BACK PAY PROVISION APPLICABLE TO ALL FEDERAL EMPLOYEES AS A REPLACEMENT FOR THE LIMITED PROVISIONS IN FORCE AT THAT TIME. THE NEW PROVISION WAS TO CREATE A UNIFORM METHOD FOR COMPUTING BACK PAY AND TO FILL CERTAIN LIMITED GAPS IN THE PERSONNEL COVERED BY THE EXISTING PROVISIONS OF LAW. WE FIND NO INDICATION OF AN INTENT TO CREATE A NEW BASIS--- SUCH AS REMEDIAL ACTION ORDERED IN EQUAL EMPLOYMENT OPPORTUNITY ACTIONS--- FOR ALLOWANCE OF BACK PAY. SEE S.REPT. NO. 1062, 89TH CONG., 2D SESS.; H.REPT. NO. 32, 89TH CONG. 1ST SESS. WE NOTE THAT THE EQUAL EMPLOYMENT OPPORTUNITY PROGRAM WAS IN EFFECT AT THE TIME THE BACK PAY ACT OF 1966 WAS ENACTED. SEE GENERALLY 40 COMP. GEN. 207; B- 164815, AUGUST 22, 1968.

WE HAVE NOT OVERLOOKED THE DECISION OF JULY 16, 1968, B-158925, IN WHICH WE HELD THAT THE BACK PAY PROVISIONS OF 5 U.S.C. 5596 COULD BE APPLIED IN CASES WHERE REEMPLOYMENT RIGHTS PROVIDED BY LAW ARE IMPROPERLY WITHHELD FROM AN EMPLOYEE UPON HIS RETURN FROM MILITARY SERVICE. THAT CASE INVOLVED A REEMPLOYMENT RIGHT GIVEN BY LAW, A REQUEST FOR REEMPLOYMENT, AND AN IMPROPER REJECTION OF SUCH REQUEST. THE PRESENT CASE AND OTHER SIMILAR CASES WHICH MIGHT ARISE UNDER THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS ARE PREDICATED UPON THE FAILURE OF AN AGENCY TO OBSERVE A GOVERNMENT POLICY WHICH RESULTS IN AN EMPLOYEE'S NOT BEING ACCORDED BENEFITS WHICH HE WOULD HAVE RECEIVED HAD IT NOT BEEN FOR HIS RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN.

REGARDING OUR DECISIONS PERMITTING THE RETROACTIVE ADJUSTMENT OF AN EMPLOYEE'S COMPENSATION BECAUSE OF ADMINISTRATIVE ERROR, IT IS OUR UNDERSTANDING THAT HERE NO ERROR WAS INVOLVED IN THE FAILURE TO TIMELY PROMOTE THE EMPLOYEE. RATHER, SUCH FAILURE WAS FOUND TO HAVE RESULTED FROM DISCRIMINATION IN THAT SUPERVISORY DUTIES WHICH WERE A PART OF THE HIGHER GRADE POSITION WERE NOT ASSIGNED TO HIM. MOREOVER, WE DO NOT REGARD OTHER OFFICE DECISIONS CITED IN THE LETTER OF NOVEMBER 1 PERTAINING TO RETROACTIVE SALARY INCREASES AS BEING APPLICABLE.

FOR THE REASONS STATED THE EMPLOYEE CONCERNED MAY NOT BE PAID ADDITIONAL COMPENSATION ON THE BASIS OF ADMINISTRATIVE ACTION TO FIX RETROACTIVELY THE DATE OF HIS PROMOTION.

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