B-141831, FEB. 4, 1960

B-141831: Feb 4, 1960

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WHICH DISALLOWED YOUR CLAIM FOR BACK PAY BECAUSE OF A REDUCTION IN FORCE WHEREBY YOU WERE REDUCED FROM A GRADE GS-12 POSITION TO A GRADE GS-7 POSITION. YOU CONTEND PRIMARILY THAT ANOTHER EMPLOYEE WHO OCCUPIED A SIMILAR GRADE GS-12 POSITION WAS ILLEGALLY PROMOTED THERETO BECAUSE HE CONTINUED TO PERFORM THE DUTIES OF HIS FORMER POSITION IN GRADE GS-11 AND NEVER PERFORMED THE DUTIES OF THE GRADE 12 POSITION AT ANY TIME PRIOR TO THE REDUCTION IN FORCE. IF SUCH CONTENTION SHOULD PREVAIL THE RESULT WOULD BE THAT SUCH OTHER EMPLOYEE PROPERLY WOULD NOT HAVE BEEN HOLDING A GRADE 12 POSITION SO AS TO BE RETAINED IN ONE OF THE REMAINING GRADE 12 POSITIONS IN PREFERENCE TO YOU. WE ARE NOT AWARE OF ANY REQUIREMENT THAT AN EMPLOYEE ACTUALLY PERFORM THE DUTIES OF A POSITION TO WHICH PROMOTED (APPOINTED) IN ORDER FOR SUCH PROMOTION TO BECOME EFFECTIVE.

B-141831, FEB. 4, 1960

TO MRS. JANE C. FOLEY:

YOUR LETTER OF JANUARY 7, 1960, REQUESTS REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 22, 1959, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY BECAUSE OF A REDUCTION IN FORCE WHEREBY YOU WERE REDUCED FROM A GRADE GS-12 POSITION TO A GRADE GS-7 POSITION.

YOU CONTEND PRIMARILY THAT ANOTHER EMPLOYEE WHO OCCUPIED A SIMILAR GRADE GS-12 POSITION WAS ILLEGALLY PROMOTED THERETO BECAUSE HE CONTINUED TO PERFORM THE DUTIES OF HIS FORMER POSITION IN GRADE GS-11 AND NEVER PERFORMED THE DUTIES OF THE GRADE 12 POSITION AT ANY TIME PRIOR TO THE REDUCTION IN FORCE. IF SUCH CONTENTION SHOULD PREVAIL THE RESULT WOULD BE THAT SUCH OTHER EMPLOYEE PROPERLY WOULD NOT HAVE BEEN HOLDING A GRADE 12 POSITION SO AS TO BE RETAINED IN ONE OF THE REMAINING GRADE 12 POSITIONS IN PREFERENCE TO YOU.

WE ARE NOT AWARE OF ANY REQUIREMENT THAT AN EMPLOYEE ACTUALLY PERFORM THE DUTIES OF A POSITION TO WHICH PROMOTED (APPOINTED) IN ORDER FOR SUCH PROMOTION TO BECOME EFFECTIVE. UNDER THE PROVISIONS OF 5 U.S.C. 38, AN EMPLOYEE MAY BE DETAILED TO OTHER DUTIES WITHIN A DEPARTMENT FOR PERIODS NOT EXCEEDING 120 DAYS AT A TIME. THUS, AN EMPLOYEE MAY BE PROMOTED TO A POSITION IN A HIGHER GRADE BUT BE REQUIRED TO CONTINUE TO PERFORM THE DUTIES OF HIS OLD POSITION UNTIL HIS SUCCESSOR IS TRAINED OR UNTIL THE DEPARTMENT DEEMS IT EXPEDIENT FOR HIM TO ENTER ON THE DUTIES OF THE NEW POSITION. UNDER SUCH CIRCUMSTANCES THE EMPLOYEE IS REGARDED AS ON DETAIL TO THE SAME EXTENT AS ONE WHO IS DETAILED TO PERFORM THE DUTIES OF A HIGHER GRADE POSITION WITHOUT THE BENEFIT OF ANY PROMOTION. PARENTHETICALLY, THE REPORT OF THE DEPARTMENT OF THE ARMY TO OUR OFFICE INDICATES THAT SUCH OTHER EMPLOYEE ACTUALLY WAS DETAILED TO THE DUTIES OF ANOTHER GRADE 12 POSITION. MOREOVER, THERE IS NOTHING IN THE RECORD BEFORE OUR OFFICE WHICH SUGGESTS IN ANY WAY THAT THE DETAIL OF THE EMPLOYEE IN QUESTION TO DUTIES OTHER THAN THOSE OF THE POSITION TO WHICH HE WAS PROMOTED (G 954-12) ON APRIL 21, 1957, WAS NOT MADE IN ACCORDANCE WITH THE APPLICABLE LAW AND REGULATIONS. THEREFORE, WE HAVE NO BASIS FOR HOLDING THAT SUCH PROMOTION WAS ILLEGAL AS SUGGESTED BY YOU.

AS POINTED OUT IN THE CLAIMS DIVISION SETTLEMENT, OUR DECISION OF JUNE 6, 1957, B-131382, CONCERNS THE SALARY RATE AND PURPORTED REASSIGNMENT OF AN EMPLOYEE IN THE SAME GRADE AND IS NOT APPLICABLE IN YOUR CASE.

BECAUSE OF THE FOREGOING COMMENTS AND FOR THE REASONS STATED IN THE SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 22, 1959, THE DISALLOWANCE OF YOUR CLAIM IS HEREBY SUSTAINED.