B-165571-/1), JUL. 18, 1969

B-165571-/1): Jul 18, 1969

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IN ABSENCE OF INDICATION OF CONGRESSIONAL INTENT TO EXTEND BACK PAY AUTHORITY TO EMPLOYEES WHO ARE NOT PROMOTED BECAUSE OF DISCRIMINATION OR OTHER UNJUSTIFIED AND UNWARRANTED CAUSE. THAT AN EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED REGARDLESS OF THE DUTIES HE PERFORMS RELATES TO CASES IN WHICH EMPLOYEES PERFORM THE DUTIES OF HIGHER GRADE POSITIONS. WE DISCUSSED THAT RULE ONLY TO SHOW THAT THE EMPLOYEE CONCERNED WAS NOT ENTITLED TO THE SALARY OF GRADE GS-11 WHILE HE WAS APPOINTED TO A GRADE GS-9 POSITION REGARDLESS OF THE DUTIES HE PERFORMED. THE ONLY CONCLUSION INTENDED WAS THAT THE EMPLOYEE CONCERNED COULD NOT RECEIVE THE PAY OF THE HIGHER GRADE POSITION BASED ON HIS PERFORMANCE OF THE DUTIES THEREOF UNTIL HE WAS PROMOTED TO THAT POSITION.

B-165571-/1), JUL. 18, 1969

CIVIL PAY - BACK PAY IN DISCRIMINATION CASES DECISION TO SECRETARY OF HOUSING AND URBAN DEVELOPMENT REAFFIRMING DECISION OF JANUARY 11, 1969, DENYING AN AWARD OF BACK PAY AS RESULT OF DETERMINATION THAT EMPLOYEE FAILED TO RECEIVE PROMOTION BECAUSE OF RACIAL DISCRIMINATION. IN ABSENCE OF INDICATION OF CONGRESSIONAL INTENT TO EXTEND BACK PAY AUTHORITY TO EMPLOYEES WHO ARE NOT PROMOTED BECAUSE OF DISCRIMINATION OR OTHER UNJUSTIFIED AND UNWARRANTED CAUSE, BACK PAY MAY NOT BE AUTHORIZED.

TO MR. SECRETARY:

WE REFER TO YOUR LETTER OF JUNE 24, 1969, BY WHICH YOU REQUEST THAT WE RECONSIDER OUR DECISION TO YOU OF JANUARY 31, 1969, B-165571, 48 COMP. GEN. ----, IN WHICH WE HELD THAT AN EMPLOYEE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT COULD NOT BE AWARDED BACK PAY UNDER 5 U.S.C. 5596 AS THE RESULT OF A DETERMINATION BY THE DEPARTMENT'S EQUAL EMPLOYMENT OPPORTUNITIES OFFICER THAT HE FAILED TO RECEIVE A PROMOTION ON A TIMELY BASIS BECAUSE OF RACIAL DISCRIMINATION AND HIS RECOMMENDATION THAT REMEDIAL ACTION IN THE FORM OF A RETROACTIVE PROMOTION BE EFFECTED.

OUR STATEMENT IN THE DECISION OF JANUARY 31, 1969, THAT AN EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED REGARDLESS OF THE DUTIES HE PERFORMS RELATES TO CASES IN WHICH EMPLOYEES PERFORM THE DUTIES OF HIGHER GRADE POSITIONS. SEE GANSE V UNITED STATES, 180 CT. CL. 183 (1967) AND CASES CITED THEREIN. WE DISCUSSED THAT RULE ONLY TO SHOW THAT THE EMPLOYEE CONCERNED WAS NOT ENTITLED TO THE SALARY OF GRADE GS-11 WHILE HE WAS APPOINTED TO A GRADE GS-9 POSITION REGARDLESS OF THE DUTIES HE PERFORMED. THE ONLY CONCLUSION INTENDED WAS THAT THE EMPLOYEE CONCERNED COULD NOT RECEIVE THE PAY OF THE HIGHER GRADE POSITION BASED ON HIS PERFORMANCE OF THE DUTIES THEREOF UNTIL HE WAS PROMOTED TO THAT POSITION. IN THE DECISION 32 COMP. GEN. 449, WHICH YOU CITE, WE HELD THAT AN EMPLOYEE WHO AS A RESULT OF A REDUCTION IN FORCE WAS IMPROPERLY SEPARATED, WHEREAS HE SHOULD HAVE BEEN DEMOTED, WAS ENTITLED TO BACK PAY FOR THE PERIOD OF HIS IMPROPER SEPARATION ONLY AT THE RATE OF PAY OF THE GRADE TO WHICH HE SHOULD HAVE BEEN DEMOTED AND WHICH GRADE HE WOULD HAVE BEEN IN EXCEPT FOR THE ERRONEOUS SEPARATION. IN B-158925, JULY 16, 1968, WHICH YOU ALSO CITE, WE HELD THAT AN EMPLOYEE WHO AFTER MILITARY SERVICE WAS DENIED RESTORATION TO POSITION HE HAD FORMERLY HELD IN VIOLATION OF A STATUTORY RIGHT TO RESTORATION COULD BE PAID BACK PAY FOR THE PERIOD RESTORATION WAS WITHHELD UPON A DETERMINATION THAT THE REFUSAL WAS ERRONEOUS AND UPON RESTORATION HAVING TAKEN PLACE. NEITHER OF THOSE CASES IN ANY WAY SUPERSEDES THE RULE THAT AN EMPLOYEE MAY NOT RECEIVE THE PAY OF A HIGHER GRADE POSITION, EVEN THOUGH HE PERFORMS THE DUTIES OF THAT POSITION, UNTIL HE IS PROPERLY APPOINTED THERETO.

THE BACK PAY ACT OF 1966, CODIFIED AS 5 U.S.C. 5596 DID EXPAND THE COVERAGE OF THE FORMER BACK PAY PROVISIONS TO INCLUDE ADDITIONAL CLASSES OF EMPLOYEES AND IT DID ALLOW BACK PAY IN CASES OTHER THAN THOSE INVOLVING SEPARATIONS, SUSPENSIONS AND DEMOTIONS. THE LIBERALIZATIONS ARE EXPLAINED AT PAGE 3 OF S. REPT. NO. 1062, 89TH CONG., 2D SESS. WE NOTE PARTICULARLY THE FOLLOWING COMMENT ON THAT PAGE:

"H.R. 1647 DOES NOT PRESCRIBE THE SPECIFIC TYPES OF PERSONNEL ACTIONS COVERED. SEPARATIONS, SUSPENSIONS, AND DEMOTIONS CONSTITUTE THE GREAT BULK OF CASES IN WHICH EMPLOYEES LOSE PAY OR ALLOWANCES, BUT OTHER UNWARRANTED OR UNJUSTIFIED ACTIONS AFFECTING PAY OR ALLOWANCES COULD OCCUR IN THE COURSE OF REASSIGNMENTS AND CHANGE FROM FULL-TIME TO PART-TIME WORK. IF SUCH ACTIONS ARE FOUND TO BE UNWARRANTED OR UNJUSTIFIED, EMPLOYEES WOULD BE ENTITLED TO BACK PAY BENEFITS WHEN THE ACTIONS ARE CORRECTED.' WE FIND NO INDICATION IN THE LEGISLATIVE HISTORY OF THE BACK PAY ACT OF 1966, HOWEVER, THAT THE CONGRESS INTENDED TO AUTHORIZE THE PAYMENT OF BACK PAY TO EMPLOYEES WHO ARE NOT PROMOTED AS A RESULT OF DISCRIMINATION OR SOME OTHER UNJUSTIFIED OR UNWARRANTED CAUSE. IN THE ABSENCE OF SPECIFIC LEGISLATION SHOWING AN INTENT ON THE PART OF CONGRESS TO EXTEND THE AUTHORITY TO AWARD BACK PAY TO EMPLOYEES WHO HAVE NOT BEEN PROMOTED BECAUSE OF DISCRIMINATION OR OTHER UNJUSTIFIED CAUSE, WE DO NOT CONSIDER THAT AUTHORITY EXISTS FOR SUCH AN AWARD OF BACK PAY. FURTHER, WE DO NOT CONSIDER THAT THE STATEMENT OF POLICY AS CODIFIED IN 5 U.S.C. 7151 PROVIDES A BASIS FOR THE ALLOWANCE OF BACK PAY SINCE THAT POLICY WAS ENACTED PRIOR TO THE BACK PAY ACT OF 1966 AND SINCE IT DID NOT PURPORT TO GRANT ANY ADDITIONAL STATUTORY PAY RIGHTS OR REMEDIES. WHETHER THE EMPLOYEE CONCERNED HAS A RIGHT TO BACK PAY UNDER THE "DUE PROCESS" CLAUSE OF THE 5TH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IS A QUESTION WHICH IS NOT WITHIN THE JURISDICTION OF OUR OFFICE. CONCERNING THE DECISION IN B-158925, ABOVE, WE ALSO POINT OUT THAT IN THAT CASE THE RETURNING VETERAN HAD A POSITIVE RIGHT OF REEMPLOYMENT; WHEREAS IN THE CASE HERE IN QUESTION, THE EMPLOYEE, WHILE HAVING A RIGHT NOT TO BE DISCRIMINATED AGAINST, DID NOT HAVE AN ABSOLUTE ENTITLEMENT TO PROMOTION AT A SPECIFIC TIME.

THE REMEDY PROVIDED IN A CASE SUCH AS THE ONE PRESENTED IN THE GRANTING OF THE PROMOTION WHICH WAS IMPROPERLY WITHHELD. THE FACT THAT THE EMPLOYEE CONCERNED IN THIS CASE WAS PROMOTED BEFORE THE DECISION ON HIS COMPLAINT WAS RENDERED DOES NOT SUPPORT THE CONCLUSION THAT THERE WAS NO REMEDY FOR HIS COMPLAINT.

WE RECOGNIZE THAT AN EMPLOYEE WHOSE PROMOTION HAS BEEN DELAYED OR DENIED BECAUSE OF DISCRIMINATION IS NOT MADE WHOLE BY RECEIVING THE PROMOTION AFTER HIS COMPLAINT HAS BEEN PROCESSED IN ACCORDANCE WITH APPLICABLE PROCEDURES. HOWEVER, FOR THE REASONS STATED ABOVE, OUR OPINION IS THAT THE CONGRESS HAS NOT AUTHORIZED THE AWARD OF BACK PAY IN SUCH CIRCUMSTANCES.

THEREFORE, THE DECISION OF JANUARY 31, 1969, B-165571, MUST BE AFFIRMED.

FOR YOUR INFORMATION, WE ENCLOSE A COPY OF OUR DECISION OF TODAY TO THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION, B-165571, WHICH DEALS WITH THE SAME SUBJECT.