B-194777, OCT 30, 1979

B-194777, OCT 30, 1979

DIGEST: 1. EMPLOYEE WAS DOWNGRADED FROM WG-11 TO WG-7 AND LATER ACCEPTED REPROMOTION TO WG-10. EMPLOYEE APPEALED DOWNGRADING TO FEDERAL EMPLOYEE APPEALS AUTHORITY WHICH OVERTURNED AGENCY ACTION AND RETROACTIVELY RESTORED EMPLOYEE TO WG-11 POSITION. EMPLOYEE IS ENTITLED TO RECEIVE BACK PAY AT WG-11 RATE FOR THE PERIOD OF THE ERRONEOUS DOWNGRADING, LESS ANY INTERIM EARNINGS. SEE 5 U.S.C. SEC. 5596(B)(1)(A) AND 5 C.F.R. SEC. 550.804. WHERE TOTAL INTERIM EARNINGS EXCEED THE TOTAL AMOUNT OF BACK PAY DUE THE EMPLOYEE, THE EXCESS AMOUNT MAY BE RETAINED BY THE EMPLOYEE. COMP.GEN. 572 (1969); 45 COMP.GEN. 16 (1965). 2. EMPLOYEE, WHO WAS DOWNGRADED FROM WG-11 TO WG-7, LATER ACCEPTED REPROMOTION TO WG-10 POSITION IN A DIFFERENT DIVISION OF AGENCY. EMPLOYEE APPEALED DOWNGRADING TO FEDERAL EMPLOYEE APPEALS AUTHORITY WHICH OVERTURNED AGENCY ACTION AND RETROACTIVELY RESTORED EMPLOYEE TO WG-11 POSITION. SINCE IT APPEARS EMPLOYEE WOULD HAVE PERFORMED OVERTIME IN WG- 11 POSITION BUT FOR ERRONEOUS DOWNGRADING AND REPROMOTION, HE IS ENTITLED UNDER BACK PAY ACT, 5 U.S.C. SEC. 5596, TO BE PAID FOR OVERTIME HE WOULD HAVE PERFORMED. 54 COMP.GEN. 1071 (1975).

WARREN H. KUMMER - ENTITLEMENT TO BACK PAY FOLLOWING IMPROPER REDUCTION IN GRADE:

THIS DECISION IS IN RESPONSE TO THE REQUEST FROM THE UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, CONCERNING THE ENTITLEMENT OF MR. WARREN H. KUMMER, A MINT EMPLOYEE, TO RETROACTIVE PAY INCIDENT TO AN IMPROPER REDUCTION IN GRADE. THE QUESTIONS PRESENTED FOR OUR DECISION ARE: (1) WHETHER THE EMPLOYEE IS INDEBTED FOR A HIGHER RATE OF PAY THAT HE RECEIVED IN THE LOWER GRADE PRIOR TO THE CORRECTIVE ACTION; AND (2) WHETHER THE EMPLOYEE IS ENTITLED TO OVERTIME PAY HE WOULD HAVE RECEIVED BUT FOR THE ERRONEOUS DOWNGRADING.

MR. KUMMER WAS EMPLOYED IN THE DIE MANUFACTURING DIVISION OF THE PHILADELPHIA MINT IN THE POSITION OF MACHINIST, WG-11, STEP 3. SEPTEMBER 25, 1977, HE WAS DOWNGRADED TO THE POSITION OF DIE WORKER, WG 7, STEP 5. ON OCTOBER 11, 1977, HE APPEALED THE REDUCTION IN GRADE TO THE CIVIL SERVICE COMMISSION, FEDERAL EMPLOYEE APPEALS AUTHORITY (FEAA). BEFORE THE APPEAL HAD BEEN DECIDED, MR. KUMMER ACCEPTED A PROMOTION TO THE POSITION OF MACHINIST, WG-10, STEP 4, IN THE BUILDING AND MECHANICAL DIVISION, EFFECTIVE APRIL 9, 1978. ON AUGUST 3, 1978, THE FEAA DETERMINED THAT THE PHILADELPHIA MINT HAD IMPROPERLY DOWNGRADED MR. KUMMER UNDER CIRCUMSTANCES WHERE REDUCTION-IN-FORCE PROCEDURES SHOULD HAVE BEEN USED. THE FEAA ORDERED THE AGENCY TO RETROACTIVELY RESTORE MR. KUMMER TO HIS FORMER POSITION BY CANCELLING THE CHANGE TO LOWER GRADE.

IN PROCESSING THE CORRECTIVE ACTION, EFFECTIVE SEPTEMBER 8, 1978, THE MINT CANCELLED MR. KUMMER'S REDUCTION-IN-GRADE AS WELL AS HIS REPROMOTION TO WG-10. IN AWARDING HIM BACK PAY, THE MINT COMPARED THE PAY RATE FOR WG -10, STEP 4 ($8 PER HOUR) WITH THE PAY RATE FOR WG-11, STEP 3 ($7.95 PER HOUR) AND DEDUCTED 5 CENTS PER HOUR FOR THAT PERIOD FROM HIS BACK PAY AWARD. MR. KUMMER ARGUES THAT HE WAS ENTITLED TO BE PAID AT THE $8 PER HOUR RATE FOR THE PERIOD FROM THE DATE OF HIS PROMOTION, APRIL 9, 1978, TO THE DATE OF THE CORRECTIVE ACTION, SEPTEMBER 8, 1978, SINCE HE PERFORMED THE DUTIES OF THE WG-10, STEP 4 POSITION DURING THAT PERIOD.

UNDER THE AUTHORITY OF THE BACK PAY ACT OF 1966, AS AMENDED, 5 U.S.C. SEC. 5596 (1976), AN EMPLOYEE WHO IS FOUND BY AN APPROPRIATE AUTHORITY TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION RESULTING IN THE WITHDRAWAL OR REDUCTION OF PAY OR ALLOWANCES, IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE THE PAY AND ALLOWANCES HE WOULD HAVE NORMALLY RECEIVED IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD. SEE 5 U.S.C. SEC. 5596(B)(1)(A) AND 5 C.F.R. SEC. 550.804. IN 45 COMP.GEN. 16 (1965) WE HELD UNDER A PREDECESSOR STATUTE THAT THE GOVERNMENT HAD NO AUTHORITY TO COLLECT BACK FROM THE EMPLOYEE ANY AMOUNT EARNED IN EXCESS OF THE BACK PAY OTHERWISE DUE, AND THAT INTERIM EARNINGS IN EXCESS OF THE BACK PAY DUE MAY BE RETAINED BY THE EMPLOYEE. THUS, MR. KUMMER IS ENTITLED TO BACK PAY AT THE WG-11 RATE DURING THE PERIOD OF THE ERRONEOUS ACTION AND HE IS ENTITLED TO RETAIN HIS INTERIM EARNINGS IN EXCESS OF THAT RATE.

MR. KUMMER ALSO REQUESTS RETROACTIVE PAY FOR THE OVERTIME WHICH HE WOULD HAVE PERFORMED HAD HE NOT BEEN DOWNGRADED FROM HIS WG-11, STEP 3 POSITION. WE HAVE BEEN ADVISED THAT WHILE MR. KUMMER REMAINED IN THE DIE MANUFACTURING DIVISION FROM SEPTEMBER 1977 UNTIL APRIL 1978, HE PERFORMED OVERTIME BASED UPON A SCHEDULE OR ROTATION WHICH DID NOT DISTINGUISH BETWEEN THE GRADE LEVELS OF VARIOUS EMPLOYEES. THUS, WHEN THE AGENCY COMPUTED HIS RETROACTIVE OVERTIME, IT USED THE HOURS HE ACTUALLY WORKED AND PAID HIM AT THE HIGHER RATE FOR WG-11. HOWEVER, THE AGENCY HAS NOT PAID MR. KUMMER FOR THE OVERTIME THAT HE WOULD HAVE PERFORMED IN THE DIE MANUFACTURING DIVISION DURING THE PERIOD FROM APRIL UNTIL SEPTEMBER 1978, WHEN HE WAS IN THE BUILDING AND MECHANICAL DIVISION. THE AGENCY ARGUES THAT MR. KUMMER IS NOT ENTITLED TO OVERTIME HE DID NOT ACTUALLY WORK AND THAT HIS REPROMOTION TO ANOTHER DIVISION WAS NOT AN "UNJUSTIFIED OR UNWARRANTED" ACTION SINCE IT CONFORMED TO PRIORITY CONSIDERATION REGULATIONS AND SINCE HE WILLINGLY ACCEPTED THE OFFER.

WE BELIEVE THAT MR. KUMMER IS ENTITLED TO THE ADDITIONAL OVERTIME HE CLAIMS FOR THE FOLLOWING REASONS. UNDER THE BACK PAY ACT, MR. KUMMER IS DEEMED TO HAVE SERVED IN HIS WG-11 POSITION IN THE DIE MANUFACTURING DIVISION FOR THE ENTIRE PERIOD OF THE REDUCTION-IN-GRADE FROM SEPTEMBER 1977 TO SEPTEMBER 1978. IT ALSO APPEARS THAT MR. KUMMER WOULD HAVE PERFORMED OVERTIME IN THE DIE MANUFACTURING DIVISION FOR THE PERIOD FROM APRIL TO SEPTEMBER 1978 BUT FOR THE IMPROPER DOWNGRADING AND SUBSEQUENT REPROMOTION. IN THIS REGARD OUR OFFICE HAS HELD THAT WHERE AN EMPLOYEE HAS BEEN DEPRIVED OF OVERTIME WORK DUE TO AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, HE IS ENTITLED TO OVERTIME PAY UNDER THE BACK PAY ACT AND IMPLEMENTING REGULATIONS EVEN THOUGH HE DID NOT ACTUALLY PERFORM WORK DURING THE OVERTIME PERIOD. 54 COMP.GEN. 1071, 1074-75 (1975); 55 ID. 171 (1975). IT DOES NOT MATTER THAT THE REPROMOTION ACTION ITSELF WAS NOT UNWARRANTED OR UNJUSTIFIED UNDER THE ACT BECAUSE THE LOSS OF OVERTIME IS ATTRIBUTABLE TO THE PRIOR ERRONEOUS DOWNGRADING ACTION. THUS, WE HOLD THAT MR. KUMMER IS ENTITLED TO RETROACTIVE PAY FOR THE OVERTIME HE WOULD HAVE PERFORMED DURING THE PERIOD FROM APRIL TO SEPTEMBER 1978.

IN COMPUTING THE AMOUNT OF BACK PAY DUE MR. KUMMER IN ACCORDANCE WITH THE FOREGOING, THE TOTAL AMOUNT OF OUTSIDE EARNINGS BY THE EMPLOYEE IS TO BE COMPARED WITH THE TOTAL AMOUNT OF BACK PAY OTHERWISE DUE THE EMPLOYEE FOR THE PERIOD OF THE IMPROPER ACTION. 48 COMP.GEN. 572 (1969); 55 ID. 48 (1975). THIS PRINCIPLE APPLIES TO OTHER EMPLOYMENT WITH THE GOVERNMENT AS WELL AS TO PRIVATE EMPLOYMENT. ACCORDINGLY, THE TOTAL BACK PAY DUE, INCLUDING OVERTIME PAY AS DISCUSSED ABOVE, IS TO BE COMPARED TO THE TOTAL INTERIM EARNINGS, INCLUDING THE $8 PER HOUR EARNED UPON REPROMOTION. THE BACK PAY DUE IS GREATER THAN THE INTERIM EARNINGS, MR. KUMMER IS ENTITLED TO BE PAID THE DIFFERENCE. IF, ON THE OTHER HAND, THE INTERIM EARNINGS ARE GREATER THAN THE BACK PAY, MR. KUMMER IS ENTITLED TO RETAIN THE INTERIM EARNINGS BUT IS NOT ENTITLED TO ANY BACK PAY.

ACCORDINGLY, ACTION SHOULD BE TAKEN ON MR. KUMMER'S CLAIMS CONSISTENT WITH THE ABOVE DISCUSSION.