B-172250, JUL 13, 1971

B-172250: Jul 13, 1971

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REQUIRES THAT A POSITIVE ADMINISTRATIVE ACTION ADVERSE TO AN EMPLOYEE MUST HAVE OCCURRED IN ORDER TO ALLOW RECOVERY UNDER THAT LAW. DAVIS: THIS WILL REFER TO THE LETTER OF MARCH 7. WE WOULD FURTHER ADVISE YOU THAT A DECISION OF THE COMPTROLLER GENERAL IS BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO APPEAL. YOU FILED A COMPLAINT OF RACIAL DISCRIMINATION WHICH WAS ADJUDICATED IN YOUR FAVOR ON JUNE 17. YOU WERE PROMOTED TO THE GRADE TO WHICH YOU CLAIMED A RIGHT TO PROMOTION AND WERE OFFERED REASSIGNMENT TO OTHER POSITIONS OF GREATER JOB MOBILITY. YOUR REQUEST THAT YOUR PROMOTION BE MADE RETROACTIVE TO DECEMBER 1966 OR "ON THE DATE THAT THE WHITE EMPLOYEES RECEIVED THE PROMOTION" WAS REJECTED ON THE BASIS OF OUR DECISION 48 COMP.

B-172250, JUL 13, 1971

CIVILIAN EMPLOYEE - RACIAL DISCRIMINATION - RETROACTIVE PROMOTION AFFIRMING ACTION OF THE CLAIMS DIVISION WHICH DENIED A RETROACTIVE PROMOTION FOR ALLEYENNE B. DAVIS INCIDENT TO A COMPLAINT OF RACIAL DISCRIMINATION ADJUDICATED IN HER FAVOR. THE "BACK PAY" STATUTE 5 U.S.C. 5596, REQUIRES THAT A POSITIVE ADMINISTRATIVE ACTION ADVERSE TO AN EMPLOYEE MUST HAVE OCCURRED IN ORDER TO ALLOW RECOVERY UNDER THAT LAW. IT HAS BEEN HELD, B-165571(1), JULY 18, 1969, THAT NO RIGHT TO PROMOTION AT A SPECIFIC TIME EXISTS, AND THEREFORE THE CLAIM FOR RETROACTIVE PROMOTION MUST BE DENIED.

TO MRS. ALLEYENNE B. DAVIS:

THIS WILL REFER TO THE LETTER OF MARCH 7, 1971, FROM YOUR ATTORNEY CONCERNING THE ACTION OF OUR CLAIMS DIVISION OF FEBRUARY 19, 1971, DENYING YOUR CLAIM FOR RETROACTIVE PAY ON THE GROUND THAT NO AUTHORITY EXISTED TO MAKE A PROMOTION YOU RECEIVED IN JUNE 1969 RETROACTIVE TO DECEMBER 1966.

IN RESPONSE TO THE INQUIRY OF YOUR ATTORNEY AS TO WHETHER THE CLAIMS DIVISION SETTLEMENT MAY BE APPEALED OR SUBJECTED TO FURTHER ADMINISTRATIVE REVIEW, SUBSECTION 32.1 OF TITLE 4, CODE OF FEDERAL REGULATIONS, PROVIDES FOR THE REVIEW OF SUCH SETTLEMENTS BY THE COMPTROLLER GENERAL UPON THE WRITTEN APPLICATION OF A CLAIMANT. ACCORDINGLY, THE LETTER FROM YOUR ATTORNEY HAS BEEN VIEWED AS SUCH AN APPLICATION AND YOUR CLAIM HAS BEEN REVIEWED BY THIS OFFICE. WE WOULD FURTHER ADVISE YOU THAT A DECISION OF THE COMPTROLLER GENERAL IS BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO APPEAL, AS SUCH, FROM THOSE DECISIONS. AS TO THE POSSIBILITY OF JUDICIAL REMEDY, SEE 28 U.S.C. 1346 AND 28 U.S.C. 1491.

THE RECORD SHOWS THAT ON OR ABOUT DECEMBER 31, 1966, YOU FILED A COMPLAINT OF RACIAL DISCRIMINATION WHICH WAS ADJUDICATED IN YOUR FAVOR ON JUNE 17, 1969. AS A RESULT OF THIS ACTION, YOU WERE PROMOTED TO THE GRADE TO WHICH YOU CLAIMED A RIGHT TO PROMOTION AND WERE OFFERED REASSIGNMENT TO OTHER POSITIONS OF GREATER JOB MOBILITY. HOWEVER, YOUR REQUEST THAT YOUR PROMOTION BE MADE RETROACTIVE TO DECEMBER 1966 OR "ON THE DATE THAT THE WHITE EMPLOYEES RECEIVED THE PROMOTION" WAS REJECTED ON THE BASIS OF OUR DECISION 48 COMP. GEN. 502 (1969).

THAT DECISION, WHICH CONCERNED A SIMILAR CLAIM FOR RETROACTIVE PROMOTION TO A GRADE LEVEL PREVIOUSLY DENIED BECAUSE OF RACIAL DISCRIMINATION HELD THAT THE "BACK PAY" STATUTE, SECTION 5596 OF TITLE 5, U.S.C. REQUIRES THAT A POSITIVE ADMINISTRATIVE ACTION ADVERSE TO AN EMPLOYEE MUST HAVE OCCURRED IN ORDER TO ALLOW RECOVERY UNDER THAT LAW.

SUBSEQUENTLY, UPON A REQUEST FOR RECONSIDERATION OF THE HOLDING IN 48 COMP. GEN. 502 SUPRA, OUR DECISION B-165571(1), JULY 18, 1969, AFFIRMED THE EARLIER DECISION. IN THAT DECISION AND ANOTHER TO THE CIVIL SERVICE COMMISSION OF THE SAME DATE, B-165571(2), JULY 18, 1969, WE POINTED OUT THAT, WHILE EMPLOYEES WHOSE PROMOTIONS ARE DENIED DUE TO RACIAL DISCRIMINATION HAVE A RIGHT NOT TO BE DISCRIMINATED AGAINST, NO RIGHT TO PROMOTION AT A SPECIFIC TIME EXISTS. WE ENCLOSE COPIES OF THESE DECISIONS FOR YOUR FURTHER INFORMATION.

IN VIEW OF THESE DECISIONS AND SINCE WE FIND NOTHING IN THE RECORD OF YOUR CASE TO SUPPORT A DIFFERENT CONCLUSION, WE ARE REQUIRED TO AFFIRM THE ACTION OF OUR CLAIMS DIVISION.