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B-188617, SEPTEMBER 20, 1977

B-188617 Sep 20, 1977
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JACKSON WAS EMPLOYED BY GSA IN PHILADELPHIA. EFFECTIVE THE LATTER DATE HE WAS TEMPORARILY PROMOTED TO THE POSITION OF FEDERAL PROTECTIVE OFFICER. THIS PROMOTION WAS MADE PERMANENT ON SEPTEMBER 5. JACKSON WAS REASSIGNED TO THE POSITION OF SUPERVISORY FEDERAL PROTECTIVE OFFICER. HE WAS PROMOTED TO SUPERVISORY FEDERAL PROTECTIVE OFFICER. HE BELIEVES HE IS ENTITLED TO THE HIGHER RATE OF PAY SINCE OTHERS PERFORMING DUTIES SIMILAR TO THOSE PERFORMED BY HIM WERE PAID RATES AT GS- 6. HE ALSO ASSERTS THAT HE IS ENTITLED TO THE HIGHER RATE SINCE HIS PROMOTION RESULTED FROM A COMPLAINT TO THE EQUAL EMPLOYMENT OPPORTUNITY COUNSELOR. THE EMPLOYEE'S AGENCY AND THE CIVIL SERVICE COMMISSION ARE PRIMARILY RESPONSIBLE FOR THE CLASSIFICATION OF THE DUTIES OF THE EMPLOYEE'S POSITION.

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B-188617, SEPTEMBER 20, 1977

GENERAL SERVICES ADMINISTRATION EMPLOYEE WHO HOLDS POSITION AS SUPERVISORY FEDERAL PROTECTIVE OFFICER, GS-6, CLAIMS COMPENSATION ADJUSTMENT FOR PERIOD HE SERVED IN GS-5 POSITION TITLE PRIOR TO PROMOTION. CLAIMANT HAS NO ENTITLEMENT UNDER CIVIL SERVICE REGULATIONS AND SUPREME COURT HELD IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976) THAT NEITHER CLASSIFICATION ACT, 5 U.S.C. 5101 ET SEQ. (1970), NOR BACK PAY ACT, 5 U.S.C. 5596 (1970), CREATES SUBSTANTIVE RIGHT TO BACK PAY FOR PERIOD OF WRONGFUL CLASSIFICATION.

GEORGE A. JACKSON - COMPENSATION ADJUSTMENT:

THIS ACTION CONCERNS AN APPEAL BY MR. GEORGE A. JACKSON, FROM SETTLEMENT CERTIFICATE NO. Z-2483519, NOVEMBER 1, 1976, DISALLOWING HIS CLAIM FOR THE DIFFERENCE IN PAY BETWEEN GRADES GS-5, STEP 6, AND GS-6, STEP 5, FROM DECEMBER 12, 1971, THROUGH SEPTEMBER 3, 1972, AS AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION (GSA).

THE RECORD SHOWS THAT MR. JACKSON WAS EMPLOYED BY GSA IN PHILADELPHIA, PENNSYLVANIA, AS A GUARD SUPERVISOR, GS-4, STEP 8, $6,342 PER ANNUM, FROM DECEMBER 15, 1968, UNTIL MAY 16, 1971. EFFECTIVE THE LATTER DATE HE WAS TEMPORARILY PROMOTED TO THE POSITION OF FEDERAL PROTECTIVE OFFICER, GS-5, STEP 6, $8,093 PER ANNUM. THIS PROMOTION WAS MADE PERMANENT ON SEPTEMBER 5, 1971. EFFECTIVE DECEMBER 12, 1971, MR. JACKSON WAS REASSIGNED TO THE POSITION OF SUPERVISORY FEDERAL PROTECTIVE OFFICER, GRADE GS-5, STEP 6. ON SEPTEMBER 3, 1972, HE WAS PROMOTED TO SUPERVISORY FEDERAL PROTECTIVE OFFICER, GS-6, STEP 5. HE CLAIMED THE DIFFERENCE BETWEEN THE GS-5 AND GS- 6 PAY ON THE GROUND THAT HE HAD PERFORMED THE HIGHER GRADE DUTIES WHILE IN THE LOWER GRADE. MR. JACKSON HAS APPEALED THE DISALLOWANCE OF HIS CLAIM. HE BELIEVES HE IS ENTITLED TO THE HIGHER RATE OF PAY SINCE OTHERS PERFORMING DUTIES SIMILAR TO THOSE PERFORMED BY HIM WERE PAID RATES AT GS- 6. HE ALSO ASSERTS THAT HE IS ENTITLED TO THE HIGHER RATE SINCE HIS PROMOTION RESULTED FROM A COMPLAINT TO THE EQUAL EMPLOYMENT OPPORTUNITY COUNSELOR.

THE CLASSIFICATION ACT OF 1949, NOW CODIFIED IN 5 U.S.C. 5101 ET SEQ. (1970), GOVERNS CLASSIFICATION OF FEDERAL POSITIONS IN THE GENERAL SCHEDULE. UNDER THE STATUTE AND IMPLEMENTING REGULATIONS IN 5 C.F.R. 511.101 ET SEQ., THE EMPLOYEE'S AGENCY AND THE CIVIL SERVICE COMMISSION ARE PRIMARILY RESPONSIBLE FOR THE CLASSIFICATION OF THE DUTIES OF THE EMPLOYEE'S POSITION. WITH ONE EXCEPTION NOT PERTINENT HERE CLASSIFICATION ACTIONS MAY NOT BE MADE RETROACTIVE UNDER CIVIL SERVICE REGULATIONS. ALSO, THE SUPREME COURT HELD IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), THAT NEITHER THE CLASSIFICATION ACT NOR THE BACK PAY ACT, 5 U.S.C. 5596 (1970) CREATES A SUBSTANTIVE RIGHT TO BACK PAY FOR A PERIOD OF WRONGFUL POSITION CLASSIFICATION. SEE, GARY K. NELLER, B-187861, MAY 27, 1977.

FURTHER, MR. JACKSON HAS NO ENTITLEMENT UNDER THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, 42 U.S.C. 2000E-16 (SUPP. V, 1975), SINCE THERE HAS BEEN NO AWARD OF BACK PAY UNDER THAT ACT.

IN VIEW OF THE FOREGOING, THE DISALLOWANCE OF MR. JACKSON'S CLAIM IS SUSTAINED.

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