B-175347, APR 21, 1972

B-175347: Apr 21, 1972

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WHEREIN YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS DISALLOWED BECAUSE YOUR SALARY IN GRADE GS-5 UPON REEMPLOYMENT WAS FIXED IN ACCORDANCE WITH THE DISCRETION VESTED IN THE INTERNAL REVENUE SERVICE (IRS). IT IS YOUR CONTENTION THAT PRIOR TO YOUR ACCEPTANCE OF EMPLOYMENT WITH IRS YOU WERE TOLD YOU WOULD RECEIVE GRADE GS-5. THAT WAS DONE ONLY AFTER A THOROUGH AND EXTENSIVE INVESTIGATION OF YOUR EDUCATION. THERE IS ON FILE A STATEMENT FROM MR. I PHONED MISS DOUGLASS AND INFORMED HER THAT THE RECORD CHECKS WERE COMPLETED SATISFACTORILY AND WE WOULD LIKE TO BRING HER ON BOARD DECEMBER 21. THIS WAS SAID ONLY BECAUSE OF MISS DOUGLASS' ANXIOUSNESS TO FIND EMPLOYMENT AND THE LENGTH OF TIME ALREADY INVOLVED.

B-175347, APR 21, 1972

CIVILIAN EMPLOYEE - DISPUTED RATE OF PAY - ENTITLEMENT DECISION SUSTAINING PRIOR DISALLOWANCE OF A CLAIM OF KATHLEEN E. DOUGLASS FOR ADDITIONAL COMPENSATION ALLEGEDLY DUE HER INCIDENT TO HER REEMPLOYMENT WITH THE INTERNAL REVENUE SERVICE. WHERE A DISPUTED QUESTION OF FACT CANNOT BE RESOLVED, THE DECISION OF THE COMP. GEN. MUST BE BASED ON THE RECORD PRESENTED BY THE AGENCY. SECTION 1913.3(3) OF THE INTERNAL REVENUE MANUAL CLEARLY STATES THAT THE SALARY OF AN INDIVIDUAL REEMPLOYED BY THE AGENCY MAY BE ESTABLISHED AT ANY STEP OF THE GRADE WHICH DOES NOT EXCEED THE STEP RATE PERMITTED UNDER THE HIGHEST PREVIOUS RATE RULE. IN VIEW OF THE FOREGOING, THE PRIOR DISALLOWANCE MUST BE SUSTAINED.

TO MISS KATHLEEN E. DOUGLASS:

THIS REFERS TO YOUR REGISTERED LETTER NO. 177496, DATED FEBRUARY 25, 1972, REQUESTING RECONSIDERATION OF OFFICE SETTLEMENT OF NOVEMBER 22, 1971, WHEREIN YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS DISALLOWED BECAUSE YOUR SALARY IN GRADE GS-5 UPON REEMPLOYMENT WAS FIXED IN ACCORDANCE WITH THE DISCRETION VESTED IN THE INTERNAL REVENUE SERVICE (IRS).

IT IS YOUR CONTENTION THAT PRIOR TO YOUR ACCEPTANCE OF EMPLOYMENT WITH IRS YOU WERE TOLD YOU WOULD RECEIVE GRADE GS-5, STEP 10, $8,510 PER ANNUM, AND THAT WAS DONE ONLY AFTER A THOROUGH AND EXTENSIVE INVESTIGATION OF YOUR EDUCATION, QUALIFICATIONS, EXPERIENCE AND REFERENCES. THERE IS ON FILE A STATEMENT FROM MR. NORMAN J. COX, PERSONNEL MANAGEMENT SPECIALIST, CONCERNING YOUR APPOINTMENT WITH IRS WHICH READS IN PART AS FOLLOWS:

"ON THE MORNING OF DECEMBER 18, I PHONED MISS DOUGLASS AND INFORMED HER THAT THE RECORD CHECKS WERE COMPLETED SATISFACTORILY AND WE WOULD LIKE TO BRING HER ON BOARD DECEMBER 21. THIS WAS SAID ONLY BECAUSE OF MISS DOUGLASS' ANXIOUSNESS TO FIND EMPLOYMENT AND THE LENGTH OF TIME ALREADY INVOLVED. IN ORDER TO DO THIS, WE WOULD NOT HAVE TIME TO SEND HER THE USUAL WRITTEN CONFIRMATION AND, IF AGREEABLE, WE WOULD CONFIRM THE APPOINTMENT OVER THE PHONE. SHE SO AGREED. I THEN CONFIRMED HER APPOINTMENT AS A SECRETARY (TYPING), GS-318-5 WITH EMPHASIS PLACED ON THE FACT THAT HER SALARY RATE WAS STILL UNDER CONSIDERATION BY THE APPOINTING OFFICER (MR. ZIEGLER). I THEN CITED THE IRS PAY ADMINISTRATION REGULATION 1913.3(3) WHICH PERMITS THE APPOINTING OFFICER TO SET THE PAY RATE OF A REINSTATED EMPLOYEE WHO HAS A BREAK IN SERVICE OF MORE THAN THREE YEARS. SHE WAS TOLD, HOWEVER, THAT THE SALARY WOULD FALL BETWEEN A GS-5 (1), $6,548 AND A GS-5 (10) BUT IF SHE WISHED TO BE CERTAIN SHE MIGHT CONTACT MR. ZIEGLER HERSELF. AT NO TIME DID I TELL HER THAT SHE WOULD RECEIVE A GIVEN SALARY. IT WAS, IN FACT, STRESSED THAT THE FINAL DECISION WOULD BE THE APPOINTING OFFICERS.

"EARLY IN THE AFTERNOON OF THE 18TH, I RECEIVED FROM SERVICES, THE SF 52 SENT BY MR. ZIEGLER'S OFFICE SETTING MISS DOUGLASS' SALARY RATE AT GS-5 (1), $6,548. FEELING THAT THIS SALARY SHOULD POSSIBLY HAVE BEEN A 5 (10), $8,510, I PHONED MR. ZIEGLER'S OFFICE TO VERIFY THE SF 52. MR. ZIEGLER WAS NOT IN AND I EXPLAINED THE SITUATION TO HIS SECRETARY AND SHE RELATED THAT MR. ZIEGLER MIGHT HAVE MEANT THE SALARY TO BE SET AT THE 10TH STEP BUT SHE WOULD HAVE HIM RETURN MY CALL WHEN HE RETURNED. SHORTLY THEREAFTER, MR. ZIEGLER PHONED AND VERIFIED THE FACT THAT GS-5 (1) WAS THE SALARY HE FELT MOST SUITABLE AND I CONSIDERED THE MATTER SETTLED."

THERE IS ALSO A STATEMENT IN THE FILE FROM MR. LATIMER K. ZEIGLER CONCERNING YOUR APPOINTMENT WHICH READS IN PART AS FOLLOWS:

"OUR STANDARD FORM 52, REQUEST FOR PERSONNEL ACTION, WHICH WE SUBMITTED TO PERSONNEL TO APPOINT MISS DOUGLASS, WAS DATED DECEMBER 17, 1970, (REQUEST NO. 71-289). WE HAD INSERTED FOR THE GRADE, STEP, AND SALARY - GS-5, STEP 1, $6548 PER ANNUM. MY REASONING FOR THIS SALARY DETERMINATION WAS: (1) MISS DOUGLASS HAD NOT PREVIOUSLY HELD A SECRETARIAL POSITION AT THE GS-7 OR EQUIVALENT SALARY LEVEL; (2) HER SALARY WOULD BE SUBSTANTIALLY HIGHER THAN THE BRANCH CHIEF'S SECRETARY WHOSE RESPONSIBILITIES ARE MUCH GREATER. I PERSONALLY DID NOT MENTION THAT THE HIGHER SALARY WOULD BE UNFAIR TO OTHER BRANCH SECRETARIES, AS THE EMPLOYEE INDICATED, BECAUSE THIS IS NOT A BASIS FOR DETERMINING SALARY. ON THE SECOND PAGE OF THE EMPLOYEE'S APPEAL LETTER SHE REFERRED TO HER INTENTION OF GOING TO PERSONNEL TO DISCUSS SALARY, ETC. AT THE TIME I DID NOT KNOW HER REASON FOR WANTING TO GO TO PERSONNEL. I AT NO TIME DURING THE INITIAL INTERVIEW DISCUSSED SALARY WITH THE APPLICANT BECAUSE I WAS CONSIDERING HIRING HER AT THE ENTRANCE SALARY GS-5. HAD I CONSIDERED SALARY RETENTION I WOULD HAVE DISCUSSED THE MATTER WITH HER. THE FIRST TIME I DISCUSSED SALARY WITH THIS EMPLOYEE WAS AFTER SHE ENTERED ON DUTY. THIS OCCURRED AFTER MISS DOUGLASS RECEIVED HER FORM SF 50. SHE MENTIONED TO A MEMBER OF MY STAFF THAT AN ERROR WAS MADE IN HER SALARY. IT WAS AFTER THIS EVENT THAT MISS DOUGLASS AND I FIRST DISCUSSED SALARY."

WITH REFERENCE TO YOUR REPORTED CONVERSATION WITH MISS PAT GALLOWAY, ANOTHER EMPLOYEE OF IRS, AS WELL AS OTHER CONVERSATIONS BETWEEN YOU AND MR. COX AFTER YOU REPORTED FOR DUTY, WE QUOTE AN ADDITIONAL STATEMENT FROM MR. COX AS FOLLOWS:

"ON MONDAY, DECEMBER 21, 1970, MISS DOUGLASS REPORTED FOR DUTY. SOON AFTER, MISS PAT GALLOWAY, SERVICES APPOINTMENT CLERK, CONTACTED ME BECAUSE OF MISS DOUGLASS' INSISTENCE THAT SHE WAS TO BE PAID AT THE GS 5 (10) RATHER THAN THE GS-5 (1). I EXPLAINED TO MISS GALLOWAY THAT NO ERROR HAD BEEN MADE; THAT IF ANY CHANGE WERE TO BE MADE IN THE SALARY RATE IT WOULD HAVE TO BE DONE BY MR. ZIEGLER.

"ON THE MORNING OF DECEMBER 24, MISS DOUGLASS CAME TO SEE ME ABOUT THE QUESTIONED PAY RATE. I AGAIN TOLD HER OF THE REGULATION 1913.3(3) WHICH ALLOWS THE APPOINTING OFFICER TO SET PAY FOR RETURNING EMPLOYEES WITH A BREAK IN SERVICE OF MORE THAN 3 YEARS. SHE READ THE REGULATION WHILE IN MY OFFICE. MISS DOUGLASS THEN SAID SHE KNEW OF OTHER EMPLOYEES IN HER SITUATION BOTH IN OUR AND OTHER AGENCIES WHO HAD BEEN EMPLOYED AND RECEIVED THE STEP CLOSEST TO THEIR PREVIOUS SALARY. SHE WONDERED WHY SHE WAS NOT RECEIVING THIS SAME CONSIDERATION. AGAIN SHE WAS TOLD THAT THIS WAS BETWEEN SHE AND MR. ZIEGLER. I THEN SHOWED HER IRM REGULATION 19133(2) WHICH REFERRED TO PERSONS RETURNING TO FEDERAL SERVICE WITH LESS THAN A 3 YEAR BREAK IN SERVICE. I EXPLAINED THAT IN THIS CIRCUMSTANCE, GOVERNMENT REGULATIONS SET THE PAY RATE, NOT THE APPOINTING OFFICER AND THAT HAD SHE COME UNDER THIS REGULATION, NORMAL IRS PRACTICE WOULD HAVE BEEN TO GIVE HER THE 10TH STEP OF A 5. HOWEVER, THE MATTER WAS OUT OF OUR HANDS.

"ON DECEMBER 29TH, MISS DOUGLASS AGAIN CAME TO MY OFFICE WITH A TYPED 'STATEMENT OF FACTS' REGARDING HER SITUATION. SHE GAVE ME A COPY WHICH SHE REQUESTED BE KEPT CONFIDENTIAL FROM MR. ZIEGLER. (I LATER SHOWED BY (MY) SUPERVISOR, MR. RON RENOUD, THIS STATEMENT). I READ THE REPORT WHILE SHE WAS IN MY OFFICE AND FINDING MYSELF MISQUOTED SEVERAL TIMES, AND DISCUSSED THE FOLLOWING ISSUES WITH HER:

"(A) 'THAT HER SALARY WOULD BE ADJUSTED TO THE HIGHEST FIGURE POSSIBLE BASED ON HER PREVIOUS SERVICE (I.E. GS-5 (10), $8,510).' AFTER CLARIFICATION, SHE AGREED THAT THE STATEMENT WAS TRUE WITH THE EXCEPTION THAT NO DEFINITE GRADE NOR SALARY WAS QUOTED HER.

"(B) THAT ON DECEMBER 24TH, 1970, SHE TALKED WITH ME IN THE OFFICE AND THAT I 'AGAIN' CONFIRMED THE FACT THAT THE $6,548 FIGURE WAS A CLERICAL ERROR I.E. THE INDIVIDUAL PREPARING THE FORM DID NOT NOTICE THAT I HAD RETENTION RIGHTS *** ONCE AGAIN WE AGREED THAT NO SUCH STATEMENT HAD BEEN MADE."

AS NOTED ABOVE MR. COX STATES THAT AT NO TIME DID HE TELL YOU THAT YOU WOULD RECEIVE A GIVEN SALARY AND THAT THE FINAL DECISION AS TO YOUR SALARY RATE RESTED WITH THE APPOINTING OFFICER, MR. ZEIGLER, WHO INDICATES THAT IT WAS ACTUALLY INTENDED THAT YOU BE APPOINTED IN GRADE GS-5, STEP 1, AT A SALARY RATE OF $6,548 PER ANNUM.

YOU CAN SEE FROM THE FOREGOING THAT YOUR VERSION OF WHAT TRANSPIRED INCIDENT TO YOUR APPOINTMENT DOES NOT AGREE WITH THE VIEWS OF THE AGENCY. WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES AND, THEREFORE, MUST BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE AGENCY.

SECTION 531.203(C) OF THE CIVIL SERVICE REGULATIONS PROVIDES IN PERTINENT PART AS FOLLOWS:

" *** WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE *** ."

THE QUOTED RULE PERMITS EACH AGENCY TO FORMULATE ITS OWN POLICY REGARDING THE APPLICATION OF THE RULE. SECTION 1913.3(3) OF THE INTERNAL REVENUE MANUAL AUTHORIZES THE SALARY OF AN EMPLOYEE WHO HAS BEEN REEMPLOYED TO BE ESTABLISHED AT ANY STEP OF THE GRADE WHICH DOES NOT EXCEED THE STEP RATE PERMITTED UNDER THE HIGHEST PREVIOUS RATE RULE.

IN VIEW OF THE FACTS AS REPORTED BY IRS AND THE APPLICABLE REGULATIONS WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.