B-148058, FEB. 23, 1962

B-148058, FEB. 23, 1962

TO MISS MYRTLE HOPPE:

YOUR LETTER OF JANUARY 19, 1962, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR SALARY ADJUSTMENT AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT.

ON SEPTEMBER 3, 1960, YOU TRANSFERRED FROM A POSITION WITH THE DEPARTMENT OF THE ARMY AT GS-3, STEP 7, $4,390 PER ANNUM, TO THE POST OFFICE DEPARTMENT AT PFS-4, STEP 4, $4,825 PER ANNUM. YOU HAD PREVIOUSLY SERVED AT GS-5, STEP 6, $4,790 PER ANNUM, WHICH WAS SHOWN ON FORM 50 ISSUED BY THE POST OFFICE DEPARTMENT. THE SALARY RATE FOR GS-5, STEP 6, HAD BEEN RAISED TO $5,170 PER ANNUM BY THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1960, APPROVED JULY 1, 1960, 74 STAT. 298, PRIOR TO YOUR TRANSFER TO THE POST OFFICE DEPARTMENT.

YOU CONTEND THAT YOUR SALARY SHOULD BE RETROACTIVELY ADJUSTED TO PFS-4, STEP 7, $5,305 PER ANNUM, ON THE GROUNDS THAT THE ADMINISTRATIVE OFFICER INTENDED TO GIVE YOU THE HIGHEST STEP OF YOUR GRADE AS SHOWN ON YOUR FORM 50, NOTIFICATION OF PERSONNEL ACTION, AND THAT THE SETTING OF YOUR SALARY RATE AT PFS-4, STEP 4, $4,825 PER ANNUM, WAS THE RESULT OF ERROR.

39 U.S.C. 3551 (A) (SUPP. II 1959-60) PROVIDES THAT:

"THE POSTMASTER GENERAL MAY APPOINT ANY PERSON WHO HAS BEEN EMPLOYED IN A CIVILIAN CAPACITY IN ANY BRANCH OF THE GOVERNMENT TO ANY POSITION IN A REGIONAL OR DISTRICT OFFICE OR TO ANY PROFESSIONAL OR SCIENTIFIC POSITION AND MAY PLACE HIM IN ANY STEP IN THE SALARY LEVEL OF THE POSTAL FIELD SERVICE SCHEDULE WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY WHICH HE RECEIVED FROM THE UNITED STATES.'

SECTION 753.311A OF THE POSTAL MANUAL SPECIFIES IN PERTINENT PART THAT:

"EACH EMPLOYEE NEW TO THE SERVICE SHALL BE APPOINTED TO STEP 1 OF THE SALARY LEVEL FOR HIS POSITION, EXCEPT THAT APPOINTEES WHO HAVE HAD PRIOR CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT AND WHO ARE APPOINTED TO A PROFESSIONAL OR SCIENTIFIC POSITION IN THE POSTAL FIELD SERVICE OR TO A POSITION IN A REGIONAL OFFICE OR A REGIONALIZED ACTIVITY MAY BE ASSIGNED TO ANY HIGHER STEP IN THE SALARY LEVEL FOR THE POSITION WHICH IS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY WHICH SUCH PERSON RECEIVED FROM THE UNITED STATES AUGMENTED BY SUBSEQUENT STATUTORY PAY INCREASES RECEIVED SINCE DECEMBER 3, 1955. * * *"

YOU ACQUIRED NO RIGHT UNDER THE LAW OR REGULATIONS TO HAVE YOUR SALARY SET AT PFS-4, STEP 7, WHICH WAS THE HIGHEST STEP AT WHICH YOUR SALARY COULD HAVE BEEN SET. RATHER, IT WAS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE UNDER THE QUOTED LAW AND REGULATION TO FIX YOUR SALARY RATE AT ANY SALARY LEVEL FOR YOUR POSITION WHICH WAS LESS THAN ONE FULL STEP ABOVE THE HIGHEST BASIC SALARY YOU PREVIOUSLY HAD RECEIVED AS AUGMENTED BY SUBSEQUENT STATUTORY PAY INCREASES RECEIVED SINCE DECEMBER 3, 1955. SINCE SETTING YOUR SALARY RATE AT PFS-4, STEP 4, $4,825 PER ANNUM, WAS NOT OF ITSELF ERRONEOUS, THE STATEMENT ON YOUR FORM 50 THAT

"HIGHEST PREVIOUS SALARY OF SUBJECT AS OF DECEMBER 2, 1959, AS CLERK- STENO (SECRETARY), GS-5, WAS $4790 P.A. WITH ORDNANCE CORPS, TWIN CITIES ARSENAL, MINNEAPOLIS, MINN. PURSUANT TO POSTAL MANUAL 753.311 (A) SUBJECT'S POD SALARY IS $4825 P.A.'

IS NOT SUFFICIENT TO ESTABLISH THAT YOUR SALARY RATE WAS NOT SET ON THE BASIS INTENDED.

CORRECTION OF AN ADMINISTRATIVE ERROR IN SETTING A SALARY RATE UPON REEMPLOYMENT OR TRANSFER CAN ONLY BE ACCOMPLISHED BY ADMINISTRATIVE ACTION AND UPON A SHOWING THAT AN ADMINISTRATIVE ERROR WAS, IN FACT, MADE IN FIXING THE SALARY RATE UPON REEMPLOYMENT OR TRANSFER. 31COMP. GEN. 15, COPY ENCLOSED.

THE POST OFFICE DEPARTMENT HAS REPORTED TO US THAT IT WAS THE INTENTION AND WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO APPOINT YOU AT PFS-4, STEP 4, $4,825 PER ANNUM, AS SHOWN BY THE REPORT OF THE REGIONAL PERSONNEL MANAGER, MINNEAPOLIS, MINNESOTA, WHEREIN IT IS STATED:

"IN SETTING HER SALARY, FULL CONSIDERATION WAS GIVEN TO THE CHANGES IN G.S. RATES. COGNIZANCE WAS ALSO TAKEN OF THE POSTAL MANUAL PROVISION THAT PRIOR FEDERAL EMPLOYEES "MAY BE ASSIGNED" AT THEIR HIGHEST PREVIOUS SALARY INCLUDING STATUTORY INCREASES.

"JUST BEFORE MISS HOPPE TRANSFERRED TO THIS OFFICE, SHE SUBMITTED AN APPLICATION SHOWING SHE WAS THEN EARNING $4390; THAT HER LOWEST ACCEPTABLE SALARY WAS $4690; THAT HER HIGHEST PREVIOUS SALARY WAS $4790. IN VIEW OF THIS, AND THE ADMINISTRATIVE DISCRETION ALLOWED IN SETTING SALARIES, AN OFFER WAS MADE TO HER ON THE BASIS OF MATCHING HER HIGHEST PREVIOUS SALARY AS SHOWN ON HER APPLICATION $4790. THE OFFER DID NOT INCLUDE STATUTORY INCREASES.

"ON THIS BASIS A FINAL OFFER OF EMPLOYMENT WAS MADE TO MISS HOPPE AT THE RATE OF $4825 PER ANNUM. SHE ACCEPTED THE OFFER AS MADE AND WAS HIRED AT THIS RATE AS AGREED. THE ENTIRE TRANSACTION WAS PROPER AND IN ACCORDANCE WITH REGULATIONS.'

IT LONG HAS BEEN A RULE OF OUR OFFICE THAT WHEN THERE IS A CONFLICT OR DISCREPANCY BETWEEN THE FACTS ADMINISTRATIVELY REPORTED AND THOSE ALLEGED BY A CLAIMANT, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY.

SINCE THE POST OFFICE DEPARTMENT REPORTS THAT NO ERROR WAS MADE IN FIXING YOUR SALARY RATE AT PFS-4, STEP 4, $4,825 PER ANNUM, AND YOU HAVE NOT ESTABLISHED A CLEAR SHOWING TO THE CONTRARY, THE SETTLEMENT DISALLOWING YOUR CLAIM, MUST BE, AND IS, SUSTAINED.