B-150411, NOV. 19, 1968

B-150411: Nov 19, 1968

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THE EXAMPLE GIVEN IS WHERE AN EMPLOYEE OF THE FEDERAL AVIATION AGENCY WHO HAD MET THE SERVICE REQUIREMENTS WAS ORIGINALLY NOTIFIED BY HIS IMMEDIATE SUPERVISOR ON NOVEMBER 23. THAT HE WAS NOT WORKING AT AN ACCEPTABLE LEVEL OF COMPETENCE FOR A WITHIN-GRADE INCREASE. A WRITTEN WARNING OF UNSATISFACTORY JOB PERFORMANCE WAS DISCOVERED IN THE CERTIFYING SUPERVISOR'S FILE. A COPY OF WHICH WE UNDERSTAND WAS FURNISHED TO THE EMPLOYEE. THE EMPLOYEE WAS NOTIFIED ON JANUARY 29. WAS CANCELLED AND THAT THE "CERTIFICATION OF LEVEL OF COMPETENCE FOR WITHIN-GRADE INCREASES" WILL REFLECT "DECISION OF CERTIFYING SUPERVISOR SUSTAINED UPON RECONSIDERATION" AND WAS FORWARDED TO THE PERSONNEL AND TRAINING BRANCH.

B-150411, NOV. 19, 1968

TO MR. MACY:

THIS REFERS TO YOUR LETTER OF OCTOBER 16, 1968, WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE AT WHAT POINT ENTITLEMENT TO A WITHIN-GRADE INCREASE VESTS UNDER THE CIRCUMSTANCES PRESENTED.

THE EXAMPLE GIVEN IS WHERE AN EMPLOYEE OF THE FEDERAL AVIATION AGENCY WHO HAD MET THE SERVICE REQUIREMENTS WAS ORIGINALLY NOTIFIED BY HIS IMMEDIATE SUPERVISOR ON NOVEMBER 23, 1964, THAT HE WAS NOT WORKING AT AN ACCEPTABLE LEVEL OF COMPETENCE FOR A WITHIN-GRADE INCREASE. THE AGENCY'S REGULATIONS PROVIDED FOR ONLY ONE RECONSIDERATION ON REQUEST OF THE EMPLOYEE, THE REVIEWING OFFICIAL BEING THE SUPERVISOR NEXT HIGHEST IN LINE OF AUTHORITY ABOVE THE SUPERIOR WHO MADE THE DETERMINATION NOT TO GRANT THE WITHIN- GRADE INCREASE.

THE EMPLOYEE REQUESTED RECONSIDERATION AND RECEIVED A NOTICE FROM THE REVIEWING OFFICIAL DATED JANUARY 13, 1965, TO THE EFFECT THAT OF THAT DATE HE HAD BEEN RESTORED TO AN "ACCEPTABLE LEVEL OF COMPETENCE.' BEFORE FORWARDING THE "CERTIFICATION OF LEVEL OF COMPETENCE FOR WITHIN GRADE INCREASES" TO THE PERSONNEL AND TRAINING BRANCH, A WRITTEN WARNING OF UNSATISFACTORY JOB PERFORMANCE WAS DISCOVERED IN THE CERTIFYING SUPERVISOR'S FILE, A COPY OF WHICH WE UNDERSTAND WAS FURNISHED TO THE EMPLOYEE. IN VIEW THEREOF, THE EMPLOYEE WAS NOTIFIED ON JANUARY 29, 1965, THAT THE MEMORANDUM OF JANUARY 13, 1965, WAS CANCELLED AND THAT THE "CERTIFICATION OF LEVEL OF COMPETENCE FOR WITHIN-GRADE INCREASES" WILL REFLECT "DECISION OF CERTIFYING SUPERVISOR SUSTAINED UPON RECONSIDERATION" AND WAS FORWARDED TO THE PERSONNEL AND TRAINING BRANCH.

UNDER THE PROVISIONS OF 5 U.S.C. 1121 (1964 ED.) IN EFFECT DURING THE PERIOD HERE IN QUESTION, THE HEAD OF AN AGENCY WAS VESTED WITH AUTHORITY TO DETERMINE WHETHER AN EMPLOYEE'S WORK WAS OF AN ACCEPTABLE LEVEL OF COMPETENCE. THE REGULATIONS ISSUED BY THE AGENCY IMPLEMENTING THE STATUTORY AUTHORITY PROVIDES THAT THE TERM "COMPETENCE" IS INTERCHANGEABLE WITH THE TERM "PERFORMANCE.' IN OTHER WORDS THE EMPLOYEE'S PERFORMANCE ON THE JOB WOULD HAVE TO BE SATISFACTORY BEFORE HE WOULD BE ENTITLED TO RECEIVE A CERTIFICATION THAT HIS WORK WAS OF AN ACCEPTABLE LEVEL OF COMPETENCE.

SECTION 6B (1) OF PT 3500.7 OF THE AGENCY'S REGULATIONS PERTAINING TO THE RELATIONSHIP TO ANNUAL PERFORMANCE RATINGS IN ISSUING AN ACCEPTABLE LEVEL OF COMPETENCE PROVIDES IN PART AS FOLLOWS: "IF A PERFORMANCE RATING WARNING NOTICE TO AN EMPLOYEE (INDICATING THAT AN UNSATISFACTORY- RATING WILL BE GIVEN UNLESS PERFORMANCE IS IMPROVED) IS IN EFFECT AT THE TIME A WITHIN-GRADE DETERMINATION IS BEING MADE, THEN THE EMPLOYEE IS AUTOMATICALLY INELIGIBLE FOR A WITHIN-GRADE INCREASE AT THAT TIME. * *

SINCE A WRITTEN WARNING OF UNSATISFACTORY JOB PERFORMANCE HAD BEEN MADE TO THE EMPLOYEE, THE REGULATIONS QUOTED ABOVE WERE CONTROLLING AND THE EMPLOYEE WAS AUTOMATICALLY INELIGIBLE FOR A WITHIN-GRADE INCREASE AT THE TIME IT ORDINARILY WOULD HAVE TAKEN EFFECT. THE ISSUANCE OF THE CERTIFICATION OF AN ACCEPTABLE LEVEL OF COMPETENCE, THEREFORE, WAS OF NO EFFECT.