B-206246 L/M, MAY 19, 1982, OFFICE OF GENERAL COUNSEL

B-206246 L/M, MAY 19, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: GENERAL SCHEDULE EMPLOYEE SEEKS PAY ADJUSTMENT AS SUPERVISOR OF PREVAILING RATE EMPLOYEE WITH HIGHER RATE OF PAY. ENTITLEMENT TO PAY ADJUSTMENT UNDER 5 U.S.C. SEC. 5333(B) AND IMPLEMENTING REGULATIONS IS WITHIN DISCRETION OF AGENCY. ABSENT MANDATORY AGENCY POLICY, THE FAILURE TO GRANT A PAY ADJUSTMENT DOES NOT CONSTITUTE AN ABUSE OF DISCRETION WARRANTING A RETROACTIVE PAY ADJUSTMENT.

MR. GEORGE MCGOWAN, BONNEVILLE POWER ADMINISTRATION:

THIS IS IN RESPONSE TO YOUR LETTER OF JANUARY 21, 1982, CONCERNING YOUR ENTITLEMENT TO A PAY ADJUSTMENT AS A SUPERVISOR OF A PREVAILING RATE EMPLOYEE.

IN VIEW OF THE STATUTES RELATING TO OUR DECISION-MAKING AUTHORITY, WE ARE UNABLE TO RENDER A FORMAL DECISION TO YOU AT THIS TIME. SEE 31 U.S.C. SECS. 74 AND 82D (1976). HOWEVER, ON THE BASIS OF THE INFORMATION PROVIDED BY YOU, WE OFFER THE FOLLOWING COMMENTS ON YOUR SITUATION. IF, AFTER STUDYING THIS INFORMATION, YOU BELIEVE YOU ARE ENTITLED TO ADDITIONAL COMPENSATION, YOU MAY SUBMIT YOUR CLAIM THROUGH YOUR AGENCY TO OUR CLAIMS GROUP IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. SEC. 71 AND 4 C.F.R. PART 31 (1981). CLAIMS ARE SUBJECT TO A 6 YEAR STATUTE OF LIMITATIONS. SEE 31 U.S.C. SEC. 71A. WE HAVE ENCLOSED COPIES OF THE CITED REGULATIONS AND DECISIONS FOR YOUR REFERENCE.

YOUR LETTER INDICATES THAT AS A GRADE GS-8 EMPLOYEE YOU SUPERVISE A PREVAILING RATE EMPLOYEE WITH A HIGHER RATE OF PAY. YOU STATE THAT SINCE YOU ARE OPERATING AT THE "FULL PERFORMANCE LEVEL" OF YOUR POSITION, YOU BELIEVE YOU ARE ENTITLED TO A PAY ADJUSTMENT IN ORDER TO EXCEED THE RATE OF PAY OF THE PREVAILING RATE EMPLOYEE YOU SUPERVISE. FROM THE CORRESPONDENCE YOU HAVE ENCLOSED WITH YOUR LETTER, IT APPEARS THAT YOUR AGENCY HAS PREVIOUSLY DENIED PAY ADJUSTMENTS TO YOU FOR TWO REASONS. FIRST, THE AGENCY STATED THAT YOU WERE NOT PERFORMING AT THE FULL PERFORMANCE LEVEL, AND A PAY ADJUSTMENT TO YOU WOULD BE INEQUITABLE TO OTHER SUPERVISORS IN SIMILAR CIRCUMSTANCES. SECOND, THE AGENCY HELD THAT THE RATE OF BASIC PAY OF THE PREVAILING RATE EMPLOYEE FOR PURPOSES OF COMPARISON EXCLUDES A "GRANDFATHERED RATE" WHICH IS CURRENTLY BEING PAID TO THE PREVAILING RATE EMPLOYEE YOU SUPERVISE.

UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5333(B) A GENERAL SCHEDULE EMPLOYEE WHO SUPERVISES A PREVAILING RATE EMPLOYEE MAY BE PAID AT A STEP RATE HIGHER THAN THE RATE OF BASIC PAY OF THE PREVAILING RATE EMPLOYEE. THE IMPLEMENTING REGULATIONS ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT SET FORTH THE CIRCUMSTANCES UNDER WHICH AGENCIES ARE AUTHORIZED TO GRANT PAY ADJUSTMENTS FOR SUPERVISORS. 5 C.F.R. PART 531, SUBPART C (1982). NOTE THAT UNDER THE PROVISIONS OF 5 C.F.R. SEC. 531.304(D)(1) THE RATE OF BASIC PAY OF THE PREVAILING RATE EMPLOYEE FOR COMPARISON PURPOSES SHALL EXCLUDE ANY IRREGULAR PREVAILING RATE, SUCH AS A RETAINED RATE.

OUR DECISIONS HAVE HELD THAT THE DETERMINATION TO GRANT A PAY INCREASE UNDER THE ABOVE-CITED AUTHORITY IS WITHIN THE DISCRETION OF THE AGENCY AND, ABSENT A MANDATORY AGENCY POLICY TO GRANT SUCH PAY ADJUSTMENTS, THE FAILURE TO GRANT SUCH PAY ADJUSTMENTS DOES NOT CONSTITUTE AN ABUSE OF DISCRETION WHICH WARRANTS RETROACTIVE COMPENSATION. FORREST C. HARRIS, B-193131, JUNE 5, 1980; ARNOLD J. GLAZ, B-165042, DECEMBER 21, 1978; DOROTHY R. GREATHOUSE, B-191523, SEPTEMBER 5, 1978. WHEN AN AGENCY ACTION IS COMMITTED TO AGENCY DISCRETION, THE STANDARD TO BE APPLIED BY THE REVIEWING AUTHORITY IS WHETHER THE ACTION IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE NOT IN ACCORDANCE WITH LAW. GLAZ, SUPRA; GREATHOUSE, SUPRA.

IN THOSE CASES WHERE THE AGENCY HAS FAILED TO FOLLOW A MANDATORY AGENCY POLICY WHICH REQUIRES SUCH A PAY ADJUSTMENT UNDER CERTAIN CONDITIONS, OUR DECISIONS HAVE PERMITTED RETROACTIVE PAY ADJUSTMENTS FOR SUCH SUPERVISORS. BILLY M. MEDAUGH, 55 COMP.GEN. 1443 (1976); JOHN O. JOHNSON, B-186896, NOVEMBER 2, 1976.

WE TRUST THAT THIS INFORMATION IS HELPFUL TO YOU.