B-172808, JUN 2, 1971

B-172808: Jun 2, 1971

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WAS ONE OF JUDGEMENT IN POSITION EVALUATION. IT IS THE RULE THAT A GOVERNMENT EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN APPOINTED EVEN THOUGH HE MAY PERFORM DUTIES OF A HIGHER GRADE. YOU WERE REASSIGNED FROM CLERK-TYPIST #1165. BY STANDARD FORM 50 YOU WERE GIVEN A CAREER PROMOTION FROM CLERK-TYPIST #1724. YOU CONTEND THAT THE POSITION TO WHICH YOU WERE ASSIGNED EFFECTIVE OCTOBER 5. HAD BEEN A GS-4 POSITION AND WAS DOWNGRADED WITHOUT A CHANGE IN DUTIES TO A GS-3. YOU APPARENTLY VIEW YOUR SUBSEQUENT PROMOTION TO GS-4 AS INDICATING AN ERROR HAD OCCURRED AT THE TIME THE POSITION WAS DOWNGRADED. THE LEGAL REASONS FOR THE DISALLOWANCE OF YOUR CLAIM ESSENTIALLY ARE OF A JURISDICTIONAL NATURE AND ARE FOUND IN SECTIONS 5107 AND 5110 OF TITLE 5.

B-172808, JUN 2, 1971

CIVILIAN EMPLOYEE - MISCLASSIFICATION - RETROACTIVE PAY CLAIM DENIAL OF CLAIM FOR RETROACTIVE PAY BASED ON ALLEGED MISCLASSIFICATION. ERROR ASSERTED BY CLAIMANT, EVEN IF MADE, WAS ONE OF JUDGEMENT IN POSITION EVALUATION. IT IS THE RULE THAT A GOVERNMENT EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN APPOINTED EVEN THOUGH HE MAY PERFORM DUTIES OF A HIGHER GRADE.

TO MISS AUDREY M. BROOKS:

WE REFER TO YOUR LETTER RECEIVED BY OUR OFFICE ON MARCH 26, 1971, REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED MARCH 11, 1971, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE PAY BETWEEN A GS 3, STEP 10, POSITION AND A GS-4, STEP 8, POSITION FOR THE PERIOD FROM OCTOBER 9, 1969, THROUGH DECEMBER 27, 1970.

IT APPEARS FROM THE RECORD THAT BY NOTIFICATION OF PERSONNEL ACTION (HEREINAFTER REFERRED TO AS STANDARD FORM 50) DATED OCTOBER 3, 1969, YOU WERE REASSIGNED FROM CLERK-TYPIST #1165, GRADE GS-3, STEP 10, TO CLERK- TYPIST #1724, GRADE GS-3, STEP 10, EFFECTIVE OCTOBER 5, 1969. EFFECTIVE DECEMBER 27, 1970, BY STANDARD FORM 50 YOU WERE GIVEN A CAREER PROMOTION FROM CLERK-TYPIST #1724, GRADE GS-3, STEP 10, TO CLERK TYPIST #234, GRADE GS-4, STEP 8.

YOU CONTEND THAT THE POSITION TO WHICH YOU WERE ASSIGNED EFFECTIVE OCTOBER 5, 1969, HAD BEEN A GS-4 POSITION AND WAS DOWNGRADED WITHOUT A CHANGE IN DUTIES TO A GS-3, STEP 10, ON THE DATE OF YOUR REASSIGNMENT. YOU APPARENTLY VIEW YOUR SUBSEQUENT PROMOTION TO GS-4 AS INDICATING AN ERROR HAD OCCURRED AT THE TIME THE POSITION WAS DOWNGRADED.

THE LEGAL REASONS FOR THE DISALLOWANCE OF YOUR CLAIM ESSENTIALLY ARE OF A JURISDICTIONAL NATURE AND ARE FOUND IN SECTIONS 5107 AND 5110 OF TITLE 5, UNITED STATES CODE.

SECTION 5107 READS AS FOLLOWS:

"SEC 5107. CLASSIFICATION OF POSITIONS

"EXCEPT AS OTHERWISE PROVIDED BY THIS CHAPTER, EACH AGENCY SHALL PLACE EACH POSITION UNDER ITS JURISDICTION IN ITS APPROPRIATE CLASS AND GRADE IN CONFORMANCE WITH STANDARDS PUBLISHED BY THE CIVIL SERVICE COMMISSION OR, IF NO PUBLISHED STANDARDS APPLY DIRECTLY, CONSISTENTLY WITH PUBLISHED STANDARDS. WHEN FACTS WARRANT, AN AGENCY MAY CHANGE A POSITION WHICH IT HAS PLACED IN A CLASS OR GRADE UNDER THIS SECTION FROM THAT CLASS OR GRADE TO ANOTHER CLASS OR GRADE. SUBJECT TO SECTION 5337 OF THIS TITLE, THESE ACTIONS OF AN AGENCY ARE THE BASIS FOR PAY AND PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE OF THE COMMISSION."

SECTION 5110, WHICH DEALS WITH REVIEW OF CLASSIFICATION OF POSITIONS, STATES THAT THE CIVIL SERVICE COMMISSION SHALL REVIEW POSITIONS IN AGENCIES TO ENABLE THE COMMISSION TO DETERMINE THE PROPRIETY OF POSITION CLASSIFICATIONS. WHERE A CLASSIFICATION IMPROPRIETY IS FOUND, THE COMMISSION SHALL PLACE THE POSITION IN ITS APPROPRIATE CLASS AND GRADE. SECTION 5110(B) IN CONCLUSION STATES:

" *** THE AGENCY SHALL ACT IN ACCORDANCE WITH THE CERTIFICATE, AND THE CERTIFICATE IS BINDING ON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICIALS."

ALTHOUGH WE ARE RESPONSIBLE FOR THE ALLOWANCE OF THE LAWFUL SALARY RATE CORRESPONDING TO THE GRADE IN WHICH AN EMPLOYEE'S POSITION IS PLACED, IT IS EVIDENT FROM THE LANGUAGE QUOTED ABOVE THAT POSITION CLASSIFICATION DETERMINATIONS ARE PRIMARILY A RESPONSIBILITY OF THE DEPARTMENT OR AGENCY CONCERNED WHICH, OF COURSE, IS SUBJECT TO REVIEW BY THE CIVIL SERVICE COMMISSION. SEE B-169416, AUGUST 12, 1970.

WHETHER AN ERROR IN POSITION CLASSIFICATION WAS MADE IS NOT DETERMINATIVE OF YOUR CLAIM. THE ERROR WHICH YOU ASSERT - IF IN FACT MADE - WAS ONE OF JUDGMENT IN POSITION EVALUATION. NEITHER THE FACTS OF RECORD BEFORE US NOR OUR JURISDICTION PROVIDES A BASIS FOR REDETERMINATION OF A POSITION CLASSIFICATION DECISION. SEE B-170500, OCTOBER 29, 1970.

IN REGARD TO YOUR CONTENTION THAT YOU PERFORMED THE DUTIES OF A HIGHER CLASSIFICATION FOR APPROXIMATELY 14 MONTHS UNDER A DESIGNATION OF CLERK- TYPIST #1724, THIS DOES NOT ENTITLE YOU TO THE SALARY SPECIFIED FOR THE GRADE OF GS-4, STEP 8. IT HAS LONG BEEN THE RULE OF THIS OFFICE AND OF THE COURTS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED, EVEN THOUGH HE MAY BE ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. 41 COMP. GEN. 497; B-165730, JANUARY 17, 1969, AND CASES CITED THEREIN.

ACCORDINGLY, THE SETTLEMENT OF MARCH 11, 1971, DISALLOWING YOUR CLAIM IS SUSTAINED.