B-164815, AUG. 22, 1968

B-164815, AUG. 22, 1968

TO MR. M. F. FLAHERTY:

THIS IS IN REPLY TO YOUR LETTER OF JULY 9, 1968, IN WHICH YOU REQUEST OUR ADVICE AS TO THE PROPRIETY OF PROMOTING MRS. MARILYN C. ENDLEIN, AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO) SERVING AS A SECRETARY (STENOGRAPHER) GRADE GS-7 RETROACTIVELY FROM NOVEMBER 5, 1967, TO APRIL 23, 1967.

YOUR LETTER INDICATES THAT THE EMPLOYEE IN QUESTION, WHO WAS SERVING AS A SECRETARY (STENOGRAPHER) AT GRADE GS-6, WAS OFFERED THE OPPORTUNITY IN MARCH 1967 TO BECOME SECRETARY TO A DEPUTY ASSISTANT DIRECTOR. THIS POSITION WAS CLASSIFIED AS A SECRETARY (STENOGRAPHER) GRADE GS-6 AT THAT TIME. SHE ACCEPTED ON THE PROMISE THAT A REQUEST FOR HER PROMOTION TO GRADE GS-7 WOULD BE PREPARED AND FORWARDED TO THE OEO PERSONNEL OFFICE. THIS PROMISE WAS GIVEN WITH THE UNDERSTANDING THAT (1) THE POSITION HAD YET TO BE ESTABLISHED BY THE OEO PERSONNEL OFFICE, AND (2) THE OEO PERSONNEL OFFICE WOULD MAKE AN INDEPENDENT JUDGMENT ON THE EMPLOYEE'S ELIGIBILITY FOR PROMOTION. THE EMPLOYEE ENTERED THE POSITION IN MARCH 1967 AND ON APRIL 13, 1967, A REQUEST FOR PERSONNEL ACTION WAS FORWARDED TO ESTABLISH THE POSITION AT GRADE GS-7 AND TO PROMOTE THE EMPLOYEE TO SECRETARY (STENOGRAPHER) GRADE GS 7.

ABOUT THE TIME OF THE EMPLOYEE'S TRANSFER A QUESTION WAS RAISED AS TO THE EMPLOYEE'S "EMOTIONAL STABILITY.' AN INVESTIGATION WAS CONCLUDED ON MAY 3, 1967, WITH THE DETERMINATION THAT NO ACTION WAS WARRANTED. ON MAY 16, 1967, THE INITIATING OFFICE, WITHDREW THE REQUEST FOR PROMOTION APPARENTLY BECAUSE OF THE INVESTIGATION. THE EMPLOYEE WAS ASSIGNED TO ANOTHER OFFICE ON JUNE 2, 1967, AND HER POSITION TITLE WAS CHANGED FROM SECRETARY (STENOGRAPHER) TO CLERK (STENOGRAPHER) BUT HER GRADE LEVEL REMAINED GS-6, STEP 7.

THE EMPLOYEE PROTESTED THE CHANGE OF POSITION TITLE AND THE FAILURE OF THE AGENCY TO EFFECT THE PROMISED PROMOTION. SHE FILED A FORMAL COMPLAINT AND AN INVESTIGATION WAS CONDUCTED. AS A RESULT OF THIS IT WAS AGREED TO PROMOTE THE EMPLOYEE TO GRADE GS-7, STEP 6, EFFECTIVE NOVEMBER 5, 1967, AND TO REQUEST A DECISION OF OUR OFFICE AS TO THE PROPRIETY OF PROMOTING HER RETROACTIVELY FROM NOVEMBER 5, 1967, TO APRIL 23, 1967. IN THIS REGARD WE HAVE BEEN INFORMALLY ADVISED THAT SHE WAS PROMOTED ON NOVEMBER 5, 1967, TO AN ENTIRELY DIFFERENT GRADE GS-7 POSITION THAN THE ONE ORIGINALLY OFFERED. THE LATTER POSITION REMAINED VACANT UNTIL FEBRUARY 1968 AND WAS NEVER FILLED BY MRS. ENDLEIN EXCEPT FROM MARCH 1967 UNTIL JUNE 1967 UNDER ORAL DIRECTION.

IT WAS THE CONCLUSION OF THE INVESTIGATING OFFICER THAT THE WITHDRAWAL OF THE REQUEST FOR PERSONNEL ACTION ON MAY 16, 1967, WAS WITHOUT JUSTIFICATION. HE FOUND THAT THE EMPLOYEE WAS READY AND WILLING TO PERFORM ALL THE DUTIES OF THE POSITION FROM APRIL 13, 1967, TO NOVEMBER 5, 1967, AND HAD IN FACT PERFORMED THE DUTIES FOR THE PERIOD BETWEEN MARCH AND JUNE 1967.

IN CONNECTION WITH THE FOREGOING YOU ASK THE FOLLOWING QUESTIONS:

"A. DID THE CIRCUMSTANCES SURROUNDING THE TRANSFER CREATE -A FIRM COMMITMENT WHICH WOULD ENTITLE THE EMPLOYEE TO PROMOTION REGARDLESS OF DELAY IN ADMINISTRATIVE ACTION?- (40 COMP. GEN. 207)

"B. WAS THE WITHDRAWAL OF THE REQUEST FOR PROMOTION -AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION- WITHIN THE MEANING OF THE BACK PAY ACT OF 1966, P.L. 89-280, 80 STAT. 94$9

"C. WAS THE REASSIGNMENT OF JUNE 2, 1967, AN -UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION- WITHIN THE MEANING OF THE BACK PAY ACT OF 1966?

"D. IF EITHER OF THE PRECEDING QUESTIONS BE ANSWERED AFFIRMATIVELY, DOES THE FAILURE TO REALIZE THE FINANCIAL BENEFITS OF THE PROMOTION, DURING THE PERIOD OF DELAY CONSTITUTE A -WITHDRAWAL OR REDUCTION OF PAY, ALLOWANCES, OR DIFFERENTIALS' WITHIN THE MEANING OF THE BACK PAY ACT OF 1966?

WITH RESPECT TO YOUR FIRST QUESTION YOUR LETTER INDICATES THAT THE PROMOTION WOULD BE EFFECTED ONLY AFTER (1) THE ESTABLISHMENT OF THE POSITION BY THE OEO PERSONNEL OFFICE, AND (2) AN INDEPENDENT JUDGING BY THE PERSONNEL OFFICE OF THE EMPLOYEE'S ELIGIBILITY FOR PROMOTION TO SUCH POSITION. ALTHOUGH THE REQUEST FOR PERSONNEL ACTION HAD BEEN FORWARDED ON APRIL 13, 1967, THE CONTEMPLATED PROMOTION OF THE EMPLOYEE WAS CONTINGENT UPON THREE ACTS ON THE PART OF THE AGENCY (1) AN ADMINISTRATIVE ACT ESTABLISHING THE POSITION, (2) A JUDGMENTAL ACT EVALUATING THE EMPLOYEE'S QUALIFICATIONS FOR THE POSITION, AND (3) A FURTHER ADMINISTRATIVE ACT APPOINTING THE EMPLOYEE TO THE POSITION. NONE OF THESE ACTS HAD BEEN ACCOMPLISHED AT THE TIME OF THE WITHDRAWAL OF THE REQUEST FOR PERSONNEL ACTION ON MAY 16, 1967. MOREOVER, THERE WAS NO FIRM COMMITMENT, IN THE NATURE OF A CONTRACT OR OTHERWISE REQUIRING THE AGENCY TO ACCOMPLISH THE PROMOTION BY A CERTAIN DATE. ALSO, IT IS WELL ESTABLISHED THAT AN ADMINISTRATIVE DELAY DOES NOT PROVIDE A BASIS FOR EFFECTING A PROMOTION RETROACTIVELY. SEE 40 COMP. GEN. 200; 39 ID. 583 AND 35 ID. 153. YOUR FIRST QUESTION IS THEREFORE ANSWERED IN THE NEGATIVE.

QUESTIONS NUMBERED B, C, AND D IN YOUR LETTER BEST MAY BE CONSIDERED TOGETHER. UNDER THE CONTROLLING STATUTE (5 U.S.C. 5596) BACK PAY ENTITLEMENT IS CONTINGENT UPON THE EMPLOYEE'S UNDERGOING AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF THE PAY * * *" . THE QUESTION WHETHER A PARTICULAR ACTION IS UNJUSTIFIED OR UNWARRANTED IS A MATTER PRIMARILY FOR DETERMINATION BY THE EMPLOYING ACTIVITY, THE CIVIL SERVICE COMMISSION OR THE COURTS. HOWEVER, WHETHER ANY SUCH ACTION DETERMINED TO BE UNJUSTIFIED OR UNWARRANTED OPERATES TO WITHDRAW OR REDUCE THE PAY OF THE EMPLOYEE IS A MATTER OF LAW AND FACT PROPERLY FOR CONSIDERATION BY OUR OFFICE. FROM THE FACTS PRESENTED, AT NO TIME PRIOR TO NOVEMBER 6, 1967, DID THE EMPLOYEE RECEIVE OR WAS THE EMPLOYEE LEGALLY ENTITLED TO RECEIVE THE PAY OF A GRADE GS-7 POSITION. THUS, REGARDLESS OF WHETHER IT BE DETERMINED THAT THE WITHDRAWAL OF THE REQUEST FOR PROMOTION ON MAY 16 OR THE REASSIGNMENT OF JUNE 2, 1967, WAS UNJUSTIFIED OR UNWARRANTED, THE FACT REMAINS THAT NEITHER SUCH ACTION OPERATED TO WITHDRAW OR TO REDUCE THE PAY TO WHICH THE EMPLOYEE OTHERWISE WAS LEGALLY ENTITLED. QUESTIONS B, C, AND D ARE ANSWERED ACCORDINGLY.