B-165571, FEB 19, 1971, 50 COMP GEN 581

B-165571, FEB 19, 1971, 50 COMP GEN 581

APPOINTMENTS - DISCRIMINATION - RACE OR SEX UPON DETERMINATION THAT AN EMPLOYEE WHO RECEIVED AN EXCEPTED SCHEDULE B APPOINTMENT AT GRADE GS-9 WAS DISCRIMINATED AGAINST BECAUSE OF RACE OR SEX, WHICH IS EXPRESSLY PROHIBITED BY 5 U.S.C. 7154(B) AND 5 CFR 713.202, AS SHE QUALIFIED FOR A GS-11, POSITION AND WAS ASSIGNED AND PERFORMED WORK WARRANTING A GS-11 CLASSIFICATION, CORRECTION OF THE PERSONNEL ACTION AND ADJUSTMENT IN PAY IS LEGALLY JUSTIFIED ON THE BASIS THE ORIGINAL CLASSIFICATION AND APPOINTMENT AS A GS-9 WAS ILLEGAL, AND THE CORRECTIVE ACTION IS NOT VIEWED AS A RETROACTIVE PROMOTION SUCH AS ORDINARILY IS PROHIBITED BY LAW.

TO THE DIRECTOR, OFFICE OF ECONOMIC OPPORTUNITY, FEBRUARY 19, 1971:

THIS IS IN REFERENCE TO LETTER DATED JULY 30, 1970, AND ENCLOSURES, AND SUPPLEMENTARY LETTER DATED NOVEMBER 6, 1970, FROM THE DEPUTY DIRECTOR, OFFICE OF ECONOMIC OPPORTUNITY (OEO), REQUESTING ADVICE AS TO WHETHER THE BACK PAY ACT OF 1966, NOW CODIFIED IN 5 U.S.C. 5596, OR OTHER LEGAL AUTHORITY IS AVAILABLE TO COMPENSATE AN EMPLOYEE, MRS. HENRIETTA CANTY, WHO HAS BEEN FOUND PURSUANT TO THE OFFICE OF ECONOMIC OPPORTUNITY'S EQUAL EMPLOYMENT OPPORTUNITY PROCEDURE TO HAVE BEEN DISCRIMINATED AGAINST IN INITIALLY CLASSIFYING HER AS A GS-9 RATHER THAN A GS-11 UPON APPOINTMENT.

IT IS STATED IN THE LETTER OF JULY 30 THAT YOUR OFFICE HAS CONSIDERED OUR DECISION REPORTED IN 48 COMP. GEN. 502 (1969) INVOLVING DISCRIMINATION IN CONNECTION WITH PROMOTION. OUR ADVICE IN THE MATTER IS REQUESTED ON THE BASIS OF ARGUMENTS SET FORTH IN A MEMORANDUM FORWARDED WITH THE DEPUTY DIRECTOR'S LETTER TO THE EFFECT THAT THE BACK PAY ACT MAY BE CONSTRUED AS APPLICABLE TO DISCRIMINATION CASES.

IN 48 COMP. GEN. 502 WE HELD THAT AN EMPLOYEE COULD NOT BE AWARDED BACK PAY UNDER 5 U.S.C. 5596 ON THE BASIS OF A DETERMINATION BY AN EQUAL EMPLOYMENT OPPORTUNITY OFFICER, UNDER ADMINISTRATIVE EQUAL EMPLOYMENT OPPORTUNITY PROCEDURES, THAT THE EMPLOYEE HAD FAILED TO RECEIVE A PROMOTION ON A TIMELY BASIS BECAUSE OF RACIAL DISCRIMINATION, AND THE OFFICER'S RECOMMENDATION THAT REMEDIAL ACTION IN THE FORM OF A RETROACTIVE PROMOTION BE EFFECTED. THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, BY LETTER DATED JUNE 24, 1969, REQUESTED THAT THE MATTER BE RECONSIDERED. BY DECISION DATED JULY 18, 1969, B-165571, THE CONCLUSION REACHED IN 48 COMP. GEN. 502 WAS AFFIRMED. SEE ALSO DECISION OF SAME DATE TO THE CHAIRMAN, CIVIL SERVICE COMMISSION, B 165571. YOU WILL NOTE THAT THE POINTS ARGUED IN THE MEMORANDUM FORWARDED WITH THE DEPUTY DIRECTOR'S LETTER HERE UNDER CONSIDERATION WERE DISCUSSED AND ANSWERED IN OUR DECISIONS OF JULY 18, 1969. THESE POINTS INCLUDE THE DISCUSSION COVERING THE LIBERALIZATIONS INCLUDED IN THE BACK PAY ACT AND THE LEGISLATIVE HISTORY WITH RESPECT THERETO; THE DISTINCTION BETWEEN OUR DECISIONS B- 158925, JULY 16, 1968, AND 48 COMP. GEN. 502; AND THE LEGAL SIGNIFICANCE OF THE STATEMENT OF POLICY AS SET FORTH IN 5 U.S.C. 7151, THE EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS, AS A BASIS FOR THE ALLOWANCE OF BACK PAY UNDER AUTHORITY OF 5 U.S.C. 5596.

WHILE WE ADHERE TO THE VIEW OF THE INAPPLICABILITY OF THE AFOREMENTIONED BACK PAY PROVISIONS, WHERE THERE IS A FAILURE TO PROMOTE AN EMPLOYEE BECAUSE OF DISCRIMINATION, IT IS OUR OPINION THAT RETROACTIVE CORRECTION OF THE PERSONNEL ACTION AND ADJUSTMENT IN PAY IN MRS. CANTY'S CASE IS LEGALLY JUSTIFIED.

THE RECORDS SHOW THAT AN EQUAL EMPLOYMENT OPPORTUNITY PANEL CONCLUDED THAT WHEN MRS. CANTY RECEIVED AN EXCEPTED SCHEDULE B APPOINTMENT ON MAY 9, 1966, AT GRADE GS-9, SHE WAS DISCRIMINATED AGAINST BECAUSE OF RACE OR SEX; THAT SHE WAS QUALIFIED FOR A GS-11 POSITION; AND THAT SHE WAS ASSIGNED TO WORK WARRANTING A GS-11 CLASSIFICATION. SINCE THE DETERMINATION AS TO QUALIFICATIONS OF MRS. CANTY IS A MATTER PROPERLY FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION, WE REQUESTED THE COMMISSION'S VIEWS AND WERE ADVISED BY LETTER DATED JANUARY 18, 1971, AS FOLLOWS:

WITH RESPECT TO THE MATTER OF QUALIFICATIONS, SECTION 6.2 OF THE CIVIL SERVICE RULES (5 CFR 6.2) PROVIDES THAT APPOINTMENTS TO POSITIONS LISTED IN SCHEDULE B ARE SUBJECT TO SUCH NONCOMPETITIVE EXAMINATION AS MAY BE PRESCRIBED BY THE COMMISSION. AT THE TIME OF MRS. CANTY'S APPOINTMENT THE REQUEST FROM THE AGENCY WAS FOR APPOINTMENT TO A GS-9 POSITION. APPROPRIATE STAFF IN THE COMMISSION HAVE NOW REVIEWED THE APPLICATION ORIGINALLY SUBMITTED AND SAY THAT IF THE AGENCY HAD REQUESTED APPROVAL OF MRS. CANTY FOR A GS-11 POSITION THE REQUEST WOULD HAVE BEEN APPROVED.

THE COMMISSION FURTHER POINTS OUT THAT ON THE BASIS OF THE OEO FINDING OF DISCRIMINATION BECAUSE OF RACE OR SEX (WHICH IS EXPRESSLY PROHIBITED BY LAW AND REGULATIONS - 5 U.S.C. 7154(B) AND 5 CFR 713.202) THE POSITION TO WHICH MRS. CANTY WAS APPOINTED WAS INTENTIONALLY MISCLASSIFIED AT A LOWER GRADE IN ORDER TO PAY HER A LOWER RATE THAN WAS PROPER FOR THE DUTIES AND RESPONSIBILITIES ASSIGNED TO HER.

SECTION 7154 OF TITLE 5, U.S.C. PROVIDES IN PART:

(B) IN THE ADMINISTRATION OF CHAPTER 51, SUBCHAPTER III OF CHAPTER 53, AND SECTIONS 305 AND 3324 OF THIS TITLE, DISCRIMINATION BECAUSE OF RACE, COLOR, CREED, SEX, OR MARTIAL STATUS IS PROHIBITED WITH RESPECT TO AN INDIVIDUAL OR A POSITION HELD BY AN INDIVIDUAL.

THE RECORD ESTABLISHED THAT DISCRIMINATION SUCH AS PROHIBITED BY THE FOREGOING PROVISION OF LAW DID IN FACT OCCUR. IT IS THEREFORE CONCLUDED THAT THE ORIGINAL CLASSIFICATION AND APPOINTMENT AS A GS-9 WAS ILLEGAL AND AS SUCH REQUIRES CORRECTION. A CORRECTIVE ACTION IN THESE CIRCUMSTANCES IS NOT VIEWED AS A RETROACTIVE PROMOTION SUCH AS ORDINARILY IS PROHIBITED BY LAW BUT AS A CORRECTION OF AN INTENTIONAL ILLEGAL APPOINTMENT OR MISCLASSIFICATION - A VIOLATION OF BOTH STATUTE AND REGULATION.

IN VIEW OF THE FOREGOING, AND SINCE IT IS STATED IN THE DEPUTY DIRECTOR'S LETTER OF NOVEMBER 6 THAT MRS. CANTY WAS ASSIGNED AND DID IN FACT PERFORM DUTIES OF A SUPERVISORY NATURE WELL ABOVE THE ENTRY LEVEL OF A GS-9, WE OFFER NO OBJECTION TO A RETROACTIVE ADJUSTMENT OF COMPENSATION.