B-186008, DECEMBER 22, 1976, 56 COMP.GEN. 199

B-186008, DECEMBER 22, 1976, 56 COMP.GEN. 199

COMPENSATION - DOWNGRADING - SAVED COMPENSATION - EMPLOYEE DEVELOPMENT PROGRAM - NOT CONSIDERED AT EMPLOYEE'S REQUEST EMPLOYEE WAS REDUCED IN GRADE UPON ACCEPTING NEW POSITION WITH LOWER INITIAL GRADE, BUT HIGHER POTENTIAL GRADE THAN HER PRESENT POSITION. AGENCY DENIED SALARY RETENTION UNDER 5 U.S.C. 5337, SINCE REDUCTION WAS AT EMPLOYEE'S REQUEST IN RESPONSE TO AGENCY ANNOUNCEMENT OF VACANCY. HOWEVER, EMPLOYEE IS ENTITLED TO SALARY RETENTION, SINCE CIVIL SERVICE COMMISSION DETERMINED THAT REDUCTION IN GRADE WAS RESULT OF EMPLOYEE DEVELOPMENT PROGRAM, WHICH IS NOT CONSIDERED TO BE AT EMPLOYEE'S REQUEST, AND THAT DENIAL OF SALARY RETENTION CONSTITUTED UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER BACK PAY ACT, 5 U.S.C. 5596.

IN THE MATTER OF FAYE ABU-GHAZALEH-- SALARY RETENTION, DECEMBER 22, 1976:

THIS ACTION IS IN RESPONSE TO THE REQUEST FOR AN ADVANCE DECISION FROM R. G. BORDLEY, CHIEF, ACCOUNTING AND FINANCE DIVISION, OFFICE OF THE COMPTROLLER, DEFENSE SUPPLY AGENCY (DSA), REGARDING THE PROPRIETY OF GRANTING SALARY RETENTION TO MS. FAYE ABU-GHAZALEH, A DSA EMPLOYEE.

THE RECORD INDICATES THAT ON SEPTEMBER 5, 1973, MS. ABU-GHAZALEH, IN RESPONSE TO A JOB OPPORTUNITY ANNOUNCEMENT POSTED BY THE AGENCY, APPLIED FOR THE POSITION OF INDUSTRIAL PROPERTY MANAGEMENT SPECIALIST, GRADE GS-5, WITH A TARGET POTENTIAL OF GRADE GS-9. THE EMPLOYEE WAS SELECTED FOR THE POSITION EFFECTIVE FEBRUARY 10, 1974, AND, SINCE SHE HAD BEEN EMPLOYED AS A SECRETARY (STENO), GRADE GS-6, STEP 10, HER ACCEPTANCE OF THIS POSITION RESULTED IN A CHANGE TO A LOWER GRADE, GS 6, STEP 10, WITH THE NOTATION ON THE SF-50 THAT THE ACTION WAS TAKEN "AT THE EMPLOYEE'S REQUEST." MS. ABU- GHAZALEH COMPLETED HER TRAINING AND WAS PROMOTED TO GRADE GS-7 ON FEBRUARY 23, 1975. THE EMPLOYEE, HOWEVER, MADE SEVERAL INQUIRIES TO HER PERSONNEL OFFICE REGARDING HER ENTITLEMENT TO SALARY RETENTION. THE QUESTION WAS REVIEWED BY VARIOUS COMMANDS AND OFFICES WITHIN DSA, AND IT WAS CONCLUDED BY THE DEPUTY DIRECTOR, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, DETROIT, THAT MS. ABU-GHAZALEH WAS ENTITLED TO SALARY RETENTION. THE ACCOUNTING AND FINANCE OFFICER, HOWEVER, QUESTIONS THE PROPRIETY OF PAYMENT SINCE THE EMPLOYEE'S DEMOTION WAS AT HER REQUEST AND WAS NOT PART OF AN EMPLOYEE DEVELOPMENT PROGRAM.

UNDER 5 U.S.C. 5337 (1970), AN EMPLOYEE WHO IS REDUCED IN GRADE MAY, UNDER CERTAIN CONDITIONS, RETAIN HIS PREVIOUS RATE OF PAY FOR 2 YEARS, IF THE REDUCTION IN GRADE WAS NOT AT HIS OWN REQUEST. SEE ALSO 5 C.F.R. PART 531, SUBPART E (1976), AND FPM SUPP. 990-2, BOOK 531, SUBCHAPTER 5D. VIEW OF THE FACT THAT THE CIVIL SERVICE COMMISSION IS GRANTED AUTHORITY TO ISSUE REGULATIONS SUPPLEMENTING 5 U.S.C. 5337, WE REQUESTED THE COMMISSION'S VIEWS ON THE PRESENT CASE. BY LETTER DATED OCTOBER 29, 1976, THE COMMISSION PROVIDED THE FOLLOWING OPINION:

AS PROVIDED IN 5 U.S.C. 5337, "AN EMPLOYEE * * * WHOSE REDUCTION IN GRADE IS NOT * * * AT HIS REQUEST * * * IS ENTITLED TO BASIC PAY AT THE RATE TO WHICH HE WAS ENTITLED IMMEDIATELY BEFORE THE REDUCTION IN GRADE * * *," IF OTHERWISE ELIGIBLE. WHEN A DEMOTION IS INITIATED BY THE AGENCY FOR THE PRIMARY BENEFIT OF THE AGENCY, IT IS NOT TAKEN AT THE EMPLOYEE'S REQUEST, EVEN THOUGH THE EMPLOYEE MAY HAVE APPLIED THROUGH MERIT PROMOTION PROCEDURES OR THE EMPLOYEE MAY HAVE REQUESTED THE AGENCY TO CONSIDER HIS PERSONAL SITUATION. ON THE OTHER HAND, IF THE DEMOTION IS INITIATED BY THE EMPLOYEE FOR HIS PERSONAL ADVANTAGE (E.G., DISSATISFACTION WITH PRESENT EMPLOYMENT, UNABLE TO PERFORM DUTIES, OR HEALTH), SALARY RETENTION IS INAPPROPRIATE. HOWEVER, IT CANNOT BE ASSUMED, SIMPLY BECAUSE MANAGEMENT INITIATES RECRUITMENT BY ADVERTISING A VACANCY, THAT IT HAS INITIATED THE DEMOTION OF AN EMPLOYEE, AND THEREFORE THAT THAT ACTION AUTOMATICALLY ENTITLES AN EMPLOYEE TO SALARY RETENTION. TO MAKE SUCH AN ASSUMPTION WOULD EFFECTIVELY NEGATE THE STATUTORY PROVISO "AT HIS REQUEST" BY FILLING ALL POSITIONS THROUGH ESTABLISHED VACANCY ANNOUNCEMENT MACHINERY. ON THE OTHER HAND, IT CANNOT BE ASSUMED THAT BECAUSE AN EMPLOYEE APPLIES FOR CONSIDERATION FOR A VACANT POSITION THAT THE ACTION IS TAKEN AT THE EMPLOYEE'S REQUEST, THAT IT FALLS WITHIN THE EXCLUSION CRITERIA OF THE LAW, AND THAT THE EMPLOYEE IS AUTOMATICALLY INELIGIBLE FOR SALARY RETENTION. IN ORDER TO DENY SALARY RETENTION, IT MUST BE ESTABLISHED THAT THE AGENCY DOES NOT HAVE A SPECIAL RECRUITMENT NEED, AND THAT THIS IS NOT IN FACT THE PARAMOUNT FACTOR LEADING TO THE DOWNGRADING.

IN FPM SUPPLEMENT 990-2, BOOK 531, THE COMMISSION HAS PROVIDED EXAMPLES OF THE KINDS OF ACTIONS WHICH ARE NOT CONSIDERED TO BE INITIATED BY THE EMPLOYEE EVEN THOUGH THE EMPLOYEE MAY HAVE REQUESTED CONSIDERATION FOR THE POSITION INVOLVED. INCLUDED IN THESE EXAMPLES IS "A DEMOTION OR REASSIGNMENT OF AN EMPLOYEE AS PART OF AN EMPLOYEE DEVELOPMENT PROGRAM IN ORDER TO PROVIDE HIM WITH A SPECIFIC TYPE OF EXPERIENCE NECESSARY TO HIS FURTHER DEVELOPMENT." EMPLOYEE DEVELOPMENT PROGRAMS ENCOMPASS THE FORMAL TRAINING PROGRAMS, IN CONNECTION WITH WHICH THE AGENCIES USUALLY HAVE WRITTEN CAREER PLANS, TRAINING AGREEMENTS, AND SO-CALLED "CAREER PROMOTIONS" WITHOUT FURTHER RECOURSE TO MERIT PROMOTION VACANCY ANNOUNCEMENTS. UPWARD MOBILITY PROGRAMS, APPRENTICE TRAINING PROGRAMS, AND INTERN PROGRAMS ARE SOME OF THE MORE COMMON DEVELOPMENT PROGRAMS. THEY ARE PROGRAMS WHICH ARE INITIATED BY THE AGENCY PRIMARILY TO BENEFIT THE AGENCY, IN THAT THEY OFFER TRAINING AND EXPERIENCE WHICH AID IN THE DEVELOPMENT OF THE WORKFORCE OR OTHERWISE MEET THE AGENCY'S NEED TO DEVELOP A RESERVOIR OF TRAINED PERSONS WITH SKILLS AND KNOWLEDGE ESSENTIAL TO THE AGENCY'S MISSION.

FROM THE INFORMATION AVAILABLE IT APPEARS THAT THE CHANGE TO LOWER GRADE OF MS. ABU-GHAZALEH WAS PART OF AN EMPLOYEE DEVELOPMENT PROGRAM. THIS SEEMS TO BE SUBSTANTIATED BY THE FACT THAT (1) THE JOB OPPORTUNITY ANNOUNCEMENT NO. 79(73) SUMMARIZED THE POSITION FUNCTIONS AS "AN ENTRANCE LEVEL TRAINEE IN INDUSTRIAL PROPERTY ADMINISTRATION UNDERGOING SYSTEMATIC TRAINING PREPARATORY TO HIGHER GRADE WORK PERFORMANCE," (2) THE REQUEST FOR PERSONNEL ACTION INITIATED BY THE TRAINING OFFICER AND PROPOSING MS. ABJ-GHAZALEH'S PROMOTION TO INDUSTRIAL PROPERTY MANAGEMENT SPECIALIST, GS- 1103-07, STATED "SATISFACTORY COMPLETION OF CAREER DEVELOPMENT PROGRAM FOR INDUSTRIAL PROPERTY MANAGEMENT SPECIALIST UNDER CAREER TRAINING PROGRAM," AND (3) THE NOTIFICATION OF THE PROMOTION ACTION, EFFECTIVE FEBRUARY 23, 1975, CONTAINS THE REMARK "PROCESSED IN ACCORDANCE WITH DCASR, DETROIT CAREER TRAINING AND DEVELOPMENT PROGRAM FOR INDUSTRIAL PROPERTY MANAGEMENT SPECIALIST DATED MARCH 1976."

THE FACT THAT THE AGENCY DID NOT INCLUDE IN THE JOB OPPORTUNITY ANNOUNCEMENT THE INFORMATION THAT SALARY RETENTION WAS APPROPRIATE THUS DENYING EQUITY TO UNKNOWN PERSONS WHO MIGHT HAVE APPLIED FOR THE POSITION IF THEY HAD BEEN SO INFORMED, AND THE FACT THAT MS. ABU GHAZALEH WAS TOLD THAT SALARY RETENTION WOULD NOT APPLY AND SIGNED A STATEMENT TO THAT EFFECT, DOES NOT LESSEN THE MANDATORY REQUIREMENT FOR APPLICATION OF SALARY RETENTION WHEN THE REQUIREMENTS OF THE LAW, THE REGULATIONS, AND OTHER COMMISSION ENUNCIATED CRITERIA HAVE BEEN MET. WE CONCUR IN THE CORRECTION OF THE PERSONNEL ACTIONS GRANTING SALARY RETENTION TO MS. ABU- GHAZALEH RETROACTIVE TO FEBRUARY 10, 1974 AND PAYMENT OF SALARY DUE AS A RESULT THEROF UNDER PROVISION OF THE BACK PAY ACT (5 U.S.C. 5596). DENIAL OF SALARY RETENTION DUE TO ERRONEOUS APPLICATION OF NONDISCRETIONARY PROCEDURES MAY BE CONSIDERED AS UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.

BASED ON THE RECORD BEFORE US AND ON THE VIEWS OF THE CIVIL SERVICE COMMISSION, WE CONCLUDE THAT THE DENIAL OF SALARY RETENTION WAS DUE TO AN ERRONEOUS APPLICATION OF A NONDISCRETIONARY PROCEDURE AND CONSTITUTED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER THE PROVISIONS OF THE BACK PAY ACT, 5 U.S.C. 5596 (SUPP. V, 1975). THEREFORE, MS. ABU-GHAZALEH IS ENTITLED TO SALARY RETENTION FOR THE PERIOD IN QUESTION.

ACCORDINGLY, THE EMPLOYEE'S CLAIM MAY BE PAID IN THE AMOUNT FOUND DUE.