B-195023, AUG 21, 1979

B-195023, AUG 21, 1979

DIGEST: EMPLOYEE CLAIMS RETROACTIVE TEMPORARY PROMOTION AND BACK PAY WHILE PERFORMING HIGHER LEVEL DUTIES IN LIGHT OF TURNER-CALDWELL DECISIONS. CLAIM IS DENIED SINCE EMPLOYEE HAS FAILED TO MEET BURDEN OF PROOF TO SUPPORT CLAIM THAT HE WAS DETAILED TO AND PERFORMED THE DUTIES OF THE HIGHER GRADE POSITION.

WALTER D. CORDER, JR. - CLAIM FOR TEMPORARY PROMOTION WHILE PERFORMING HIGHER LEVEL DUTIES:

WALTER D. CORDER, JR., APPEALS OUR CLAIMS DIVISION SETTLEMENT DATED MARCH 16, 1979, DENYING HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD THAT HE PERFORMED HIGHER LEVEL DUTIES. THE QUESTION PRESENTED FOR OUR DECISION IS WHETHER MR. CORDER HAS PRESENTED SUFFICIENT EVIDENCE TO DEMONSTRATE THAT HE WAS IN FACT DETAILED TO A HIGHER LEVEL POSITION.

MR. CORDER WAS EMPLOYED BY THE NAVAL AIR REWORK FACILITY IN CHERRY POINT, NORTH CAROLINA, AS AN AIRCRAFT MECHANIC HELPER, GRADE WG-5, AND HE CLAIMS THAT FROM JULY 8, 1974, TO SEPTEMBER 11, 1977, HE PERFORMED THE DUTIES OF AIRCRAFT WORKER, GRADE WG-8. THE AGENCY DENIED MR. CORDER'S CLAIM ON THE GROUND THAT HE HAD NOT SUBMITTED ACCEPTABLE DOCUMENTATION TO SUBSTANTIATE THE DETAIL AND THAT HE DID NOT BEGIN TO PERFORM HIGHER LEVEL ASSIGNMENTS TO ANY SIGNIFICANT DEGREE UNTIL HE WAS TEMPORARILY PROMOTED ON SEPTEMBER 11, 1977. OUR CLAIMS DIVISION DENIED THE CLAIM ON THE BASIS THAT, ALTHOUGH MR. CORDER MAY HAVE PERFORMED SOME HIGHER LEVEL DUTIES, HE WAS NOT ACTUALLY DETAILED TO A POSITION CLASSIFIED AT A HIGHER GRADE.

ON APPEAL, MR. CORDER'S DULY AUTHORIZED REPRESENTATIVE STATES THAT MR. CORDER WAS VERBALLY ASSIGNED THE HIGHER LEVEL DUTIES BY HIS SUPERVISOR. IN ADDITION, HE SUBMITS A STATEMENT FROM THREE OF MR. CORDER'S FELLOW EMPLOYEES TO THE EFFECT THAT MR. CORDER PERFORMED THE DUTIES OF THE HIGHER LEVEL POSITION.

WE HAVE HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER GRADE POSITION AND THE AGENCY FAILS TO SEEK CIVIL SERVICE COMMISSION APPROVAL TO EXTEND THE DETAIL FOR A PERIOD BEYOND 120 DAYS, THE AGENCY MUST AWARD THE EMPLOYEE A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD OF THE DETAIL IN EXCESS OF 120 DAYS. TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). AS IS THE CASE WITH ANY CLAIM AGAINST THE UNITED STATES, THE BURDEN IS ON THE CLAIMANT TO ESTABLISH THE LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. SEE 4 C.F.R. SEC. 31.7 (1978). WITH REGARD TO WHAT CONSTITUTES ACCEPTABLE PROOF OF A DETAIL, CIVIL SERVICE COMMISSION BULLETIN NO. 300-40, MAY 25, 1977, STATES THAT ACCEPTABLE DOCUMENTATION INCLUDES OFFICIAL PERSONNEL DOCUMENTS OR OFFICIAL MEMORANDA, WRITTEN STATEMENTS FROM SUPERVISORS OR OTHER MANAGEMENT OFFICIALS WHO WERE FAMILIAR WITH THE EMPLOYEE'S WORK.

THE EVIDENCE IN THIS CASE IS NOT SUFFICIENT TO ESTABLISH THAT MR. CORDER DID IN FACT PERFORM THE DUTIES OF THE HIGHER GRADE POSITION. THERE ARE NO OFFICIAL RECORDS OF ANY DETAIL TO THE HIGHER POSITION. WHILE MR. CORDER HAS SUBMITTED A STATEMENT FROM FELLOW EMPLOYEES THAT HE PERFORMED HIGHER GRADE DUTIES, THE AGENCY STATES THAT HE WAS PERFORMING PROGRESSIVELY MORE RESPONSIBLE TASKS UNDER THE SUPERVISION AND GUIDANCE OF MORE EXPERIENCED JOURNEYMEN IN PREPARATION FOR PROMOTION. THEREFORE, WE CONCLUDE THAT MR. CORDER HAS NOT MET HIS BURDEN OF ESTABLISHING THE LIABILITY OF THE UNITED STATES AND HIS RIGHT TO PAYMENT AS PROVIDED IN 4 C.F.R. SEC. 31.7. SEE JOHN R. FIGARD, B-181700, JANUARY 18, 1978.

ACCORDINGLY, WE SUSTAIN OUR CLAIMS DIVISION SETTLEMENT DENYING MR. CORDER'S CLAIM FOR ADDITIONAL COMPENSATION FOR PERFORMING HIGHER LEVEL DUTIES.