B-165571-/2), JUL. 18, 1969

B-165571-/2): Jul 18, 1969

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CIVIL PAY - BACK PAY IN DISCRIMINATION CASES DECISION TO CIVIL SERVICE COMMISSION CHAIRMAN HOLDING THAT CIVIL SERVICE COMMISSION DOES NOT HAVE AUTHORITY TO AWARD BACK PAY OR AUTHORIZE RETROACTIVE PROMOTION OR RESULT OF APPEAL UNDER NONDISCRIMINATION PROVISIONS IN PART 713 OF THE CIVIL SERVICE REGULATIONS. QUESTION AROSE IN CONNECTION WITH 15 EMPLOYEES OF THE NATIONAL INSTITUTES OF HEALTH WHO WERE ADVERSELY AFFECTED. BY WHICH YOU ASK WHETHER THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO AWARD BACK PAY AND RETROACTIVE PROMOTIONS TO EMPLOYEES WHO WERE NOT PROMOTED AS A RESULT OF DISCRIMINATION AS DETERMINED UNDER THE PROVISIONS OF PART 713 OF THE CIVIL SERVICE REGULATIONS WHICH DEALS WITH EQUAL OPPORTUNITY IN GOVERNMENT EMPLOYMENT.

B-165571-/2), JUL. 18, 1969

CIVIL PAY - BACK PAY IN DISCRIMINATION CASES DECISION TO CIVIL SERVICE COMMISSION CHAIRMAN HOLDING THAT CIVIL SERVICE COMMISSION DOES NOT HAVE AUTHORITY TO AWARD BACK PAY OR AUTHORIZE RETROACTIVE PROMOTION OR RESULT OF APPEAL UNDER NONDISCRIMINATION PROVISIONS IN PART 713 OF THE CIVIL SERVICE REGULATIONS. QUESTION AROSE IN CONNECTION WITH 15 EMPLOYEES OF THE NATIONAL INSTITUTES OF HEALTH WHO WERE ADVERSELY AFFECTED.

TO MR. HAMPTON:

WE REFER TO YOUR LETTER OF JUNE 11, 1969, BY WHICH YOU ASK WHETHER THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO AWARD BACK PAY AND RETROACTIVE PROMOTIONS TO EMPLOYEES WHO WERE NOT PROMOTED AS A RESULT OF DISCRIMINATION AS DETERMINED UNDER THE PROVISIONS OF PART 713 OF THE CIVIL SERVICE REGULATIONS WHICH DEALS WITH EQUAL OPPORTUNITY IN GOVERNMENT EMPLOYMENT. YOU SAY IN PART: "THE CASES UNDER CONSIDERATION RELATE TO FIFTEEN EMPLOYEES OF THE NATIONAL INSTITUTES OF HEALTH WHO WERE ADVERSELY AFFECTED FOR A NUMBER OF YEARS BECAUSE OF AN ESTABLISHED PATTERN OF RACIAL DISCRIMINATION THAT EXISTED IN THE SECTION IN WHICH THEY ARE EMPLOYED. WHILE VARIOUS CORRECTIVE ACTIONS HAVE OCCURRED, INCLUDING THE REGULAR PROMOTION OF SOME OF THE APPELLANTS, ONE THE THE MAJOR CONTENTIONS OF THEIR ATTORNEY, MR. MONROE H. FREEDMAN, IS THAT THE ONLY TRULY EFFECTIVE CORRECTIVE ACTION THAT WILL REMEDY THE INJURY DONE BY THE PAST RACIAL DISCRIMINATION IS FOR THE COMMISSION TO ORDER THE RETROACTIVE PROMOTION OF THE APPELLANTS SO AS TO ENTITLE THEM TO THE BACK PAY AND TIME-IN-GRADE BENEFITS HERETOFORE IMPROPERLY DENIED THEM.'

WHILE WE RECOGNIZE THAT THE PROSPECTIVE PROMOTION OF EMPLOYEES WHO HAVE BEEN IMPROPERLY DENIED PROMOTIONS FOR LONG PERIODS OF TIME BECAUSE OF RACIAL DISCRIMINATION WILL NOT FULLY REMEDY THE INJURY DONE THEM, WE FIND NO BASIS IN LAW FOR THE AWARD OF BACK PAY IN SUCH CASES. OUR DECISION OF JANUARY 31, 1969, B-165571, 48 COMP. GEN. -----, IN WHICH WE HELD THAT BACK PAY WAS NOT ALLOWABLE IN A PARTICULAR CASE INVOLVING THE DELAY OF A PROMOTION DUE TO DISCRIMINATION WAS AFFIRMED IN OUR DECISION OF TODAY TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, B 165571. A COPY OF THAT DECISION IS ENCLOSED. THE RULE STATED IN THOSE DECISIONS IS GENERALLY APPLICABLE TO CASES INVOLVING A FAILURE TO PROMOTE DUE TO DISCRIMINATION.

WITH REGARD TO YOUR SPECIFIC QUESTIONS THE DECISION B-158925, JULY 16, 1968, INVOLVED FORMER EMPLOYEES WHO HAD A STATUTORY RIGHT TO BE REINSTATED SUBSEQUENT TO THEIR MILITARY SERVICE. WE HELD THAT BACK PAY UNDER 5 U.S.C. 5596 COULD BE AWARDED UPON COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE BECAUSE THE REFUSAL TO REEMPLOY THE EMPLOYEES IN VIOLATION OF A STATUTORY RIGHT WAS AN ,ACTION" WHICH RESULTS IN THE WITHDRAWAL OF PAY THE INDIVIDUAL WOULD OTHERWISE RECEIVE. WE DO NOT FEEL THAT THE RULE IN THAT CASE MAY BE EXPANDED TO COVER THE CASES HERE IN QUESTION. THE EMPLOYEES, WHILE HAVING A RIGHT NOT TO BE DISCRIMINATED AGAINST, DID NOT HAVE AN ABSOLUTE ENTITLEMENT TO PROMOTION AT A SPECIFIC TIME. AS INDICATED IN THE DECISION OF TODAY TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, WE DO NOT FIND ANY AUTHORITY IN LAW TO AWARD BACK PAY TO EMPLOYEES FOR THE PERIODS THAT PROMOTIONS ARE IMPROPERLY DELAYED AS THE RESULT OF DISCRIMINATION OR FOR SOME OTHER UNJUSTIFIED OR UNWARRANTED REASON. FURTHER, ADMINISTRATIVE ERRORS WHICH JUSTIFY A RETROACTIVELY EFFECTIVE PERSONNEL ACTION ARE CLERICAL OR ADMINISTRATIVE ERRORS WHICH ALTER THE SPECIFIC INTENT OF THE OFFICIAL RESPONSIBLE FOR THE ACTION. 46 COMP. GEN. 595, 597. WE FIND NO EVIDENCE IN THE MATERIALS SUBMITTED WITH YOUR LETTER THAT AN ADMINISTRATIVE ERROR OF THAT TYPE WAS INVOLVED IN THE CASES IN QUESTION.

FOR THE REASONS STATED, WE MUST HOLD THAT THE CIVIL SERVICE COMMISSION DOES NOT HAVE AUTHORITY TO AWARD BACK PAY OR AUTHORIZE A RETROACTIVE PROMOTION TO AN EMPLOYEE AS A RESULT OF AN APPEAL UNDER THE NONDISCRIMINATION PROVISIONS OF PART 713 OF THE CIVIL SERVICE REGULATIONS.