B-180706, AUG 7, 1974

B-180706: Aug 7, 1974

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CLAIM FOR ADDITIONAL COMPENSATION FOR PERIOD DURING WHICH WITHIN GRADE INCREASE WAS WITHHELD FOLLOWING NEGATIVE ACCEPTABLE LEVEL OF COMPETENCE DETERMINATION BY AGENCY MAY NOT BE ALLOWED SINCE THE NEGATIVE DETERMINATION HAS BEEN SUSTAINED BY BOTH THE AGENCY ON RECONSIDERATION AND BY THE BOARD OF APPEALS AND REVIEW. DECISIONS OF THE BOARD ARE FINAL AND CONCLUSIVE IN SUCH MATTERS AND THERE IS THEREFORE NO BASIS FOR FURTHER ADMINISTRATIVE REVIEW. 2. EMPLOYEE CLAIMS REIMBURSEMENT OF UNUSED PARKING FEES BECAUSE HIS PLACE OF EMPLOYMENT WAS RELOCATED DURING MIDDLE OF MONTH FOR WHICH HE HAD PAID A FULL MONTH'S PARKING FEE AT OLD PLACE OF EMPLOYMENT. PREVIOUS DISALLOWANCE OF CLAIM IS SUSTAINED SINCE NO LAW REQUIRES A SPECIFIC AMOUNT OF NOTICE OF MOVE OF OFFICE WITHIN SAME GENERAL AREA.

B-180706, AUG 7, 1974

1. CLAIM FOR ADDITIONAL COMPENSATION FOR PERIOD DURING WHICH WITHIN GRADE INCREASE WAS WITHHELD FOLLOWING NEGATIVE ACCEPTABLE LEVEL OF COMPETENCE DETERMINATION BY AGENCY MAY NOT BE ALLOWED SINCE THE NEGATIVE DETERMINATION HAS BEEN SUSTAINED BY BOTH THE AGENCY ON RECONSIDERATION AND BY THE BOARD OF APPEALS AND REVIEW. DECISIONS OF THE BOARD ARE FINAL AND CONCLUSIVE IN SUCH MATTERS AND THERE IS THEREFORE NO BASIS FOR FURTHER ADMINISTRATIVE REVIEW. 2. EMPLOYEE CLAIMS REIMBURSEMENT OF UNUSED PARKING FEES BECAUSE HIS PLACE OF EMPLOYMENT WAS RELOCATED DURING MIDDLE OF MONTH FOR WHICH HE HAD PAID A FULL MONTH'S PARKING FEE AT OLD PLACE OF EMPLOYMENT. PREVIOUS DISALLOWANCE OF CLAIM IS SUSTAINED SINCE NO LAW REQUIRES A SPECIFIC AMOUNT OF NOTICE OF MOVE OF OFFICE WITHIN SAME GENERAL AREA, AGENCY INDICATES EMPLOYEE SHOULD REASONABLY HAVE BEEN AWARE OF IMPENDING MOVE, AND LAW ONLY PROVIDES FOR REIMBURSEMENT OF PARKING FEES WHEN EMPLOYEE IS AUTHORIZED TO USE HIS CAR ON OFFICIAL BUSINESS. SEE COMP. GEN. DEC. CITED.

JOHN E. HOLT - COMPENSATION FOR WITHHELD WITHIN-GRADE INCREASE:

THIS MATTER INVOLVES A REQUEST FOR RECONSIDERATION OF A SETTLEMENT CERTIFICATE ISSUED OCTOBER 24, 1973, BY OUR TRANSPORTATION AND CLAIMS DIVISION WHEREIN THE CLAIMS OF MR. JOHN E. HOLT, AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION, FOR ADDITIONAL COMPENSATION IN CONNECTION WITH A DELAYED WITHIN-GRADE STEP INCREASE AND FOR REIMBURSEMENT FOR UNUSED PARKING FEES DURING A MONTH IN WHICH HIS PLACE OF EMPLOYMENT WAS RELOCATED, WERE DISALLOWED.

REGARDING THE CLAIM FOR COMPENSATION FOR THE PERIOD DURING WHICH MR. HOLT'S WITHIN-GRADE STEP INCREASE WAS WITHHELD, THE RECORD INDICATES THAT ON AUGUST 10, 1970, MR. HOLT RECEIVED A COPY OF HIS AGENCY'S AUGUST 8, 1970, DECISION TO WITHHOLD HIS WITHIN-GRADE SALARY INCREASE BASED UPON ITS DETERMINATION THAT HIS PERFORMANCE WAS NOT AT AN ACCEPTABLE LEVEL OF COMPETENCE. SUBSEQUENTLY MR. HOLT'S AGENCY MADE ANOTHER DETERMINATION OF THE ACCEPTABLE LEVEL OF HIS COMPETENCE WHICH WAS FAVORABLE TO HIM AND HIS WITHIN-GRADE SALARY INCREASE WAS GRANTED EFFECTIVE NOVEMBER 1, 1970.

ON AUGUST 11, 1970, MR. HOLT REQUESTED HIS AGENCY TO RECONSIDER THEIR AUGUST 8, 1970, NEGATIVE ACCEPTABLE LEVEL OF COMPETENCE DETERMINATION. MARCH 15, 1971, THE AGENCY SUSTAINED THEIR ORIGINAL DETERMINATION AND ON AUGUST 3, 1971, THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW AFFIRMED THE AGENCY'S RECONSIDERATION DECISION. THEREAFTER MR. HOLT FILED A CLAIM WITH THIS OFFICE FOR THE AMOUNT OF ADDITIONAL COMPENSATION HE WOULD HAVE RECEIVED HAD HE BEEN GIVEN HIS WITHIN-GRADE STEP INCREASE AT THE EARLIER DATE ON THE GROUNDS THAT HE WAS NOT ALLOWED TO CONTEST THE BASIS FOR THE NEGATIVE DETERMINATION BOTH PERSONALLY AND IN WRITING AND THAT THE REASONS ADVANCED BY HIS AGENCY FOR WITHHOLDING HIS WITHIN-GRADE INCREASE WERE "THROWN OUT BY A GRIEVANCE COMMITTEE." MR. HOLT HAS ALSO SUBMITTED TO THIS OFFICE A STATEMENT FROM ANOTHER GENERAL SERVICES ADMINISTRATION EMPLOYEE ATTESTING TO MR. HOLT'S PERFORMANCE AND HAS POINTED OUT THAT A JUNE 1974 DECISION OF THE BOARD OF APPEALS AND REVIEW IN ANOTHER MATTER WOULD APPEAR TO BE FAVORABLE TO HIS OWN CASE.

UNDER THE PROVISIONS OF SECTION 5335 OF TITLE 5, U.S.C. AN AGENCY IS VESTED WITH AUTHORITY TO DETERMINE WHETHER AN EMPLOYEE'S WORK IS OF AN ACCEPTABLE LEVEL OF COMPETENCE. SUBSECTION (C) OF SECTION 5335 PROVIDES, IN PART, AS FOLLOWS:

"(C) WHEN A DETERMINATION IS MADE *** THAT THE WORK OF AN EMPLOYEE IS NOT OF AN ACCEPTABLE LEVEL OF COMPETENCE, THE EMPLOYEE IS ENTITLED TO PROMPT WRITTEN NOTICE OF THAT DETERMINATION AND AN OPPORTUNITY FOR RECONSIDERATION OF THE DETERMINATION WITHIN HIS AGENCY UNDER UNIFORM PROCEDURES PRESCRIBED BY THE COMMISSION. IF THE DETERMINATION IS AFFIRMED ON RECONSIDERATION, THE EMPLOYEE IS ENTITLED TO APPEAL TO THE COMMISSION. IF THE RECONSIDERATION OR APPEAL RESULTS IN A REVERSAL OF THE EARLIER DETERMINATION, THE NEW DETERMINATION SUPERSEDES THE EARLIER DETERMINATION AND IS DEEMED TO HAVE BEEN MADE AS OF THE DATE OF THE EARLIER DETERMINATION ***."

THE CIVIL SERVICE COMMISSION'S PROCEDURAL REGULATIONS UNDER THAT SECTION ARE CONTAINED IN SECTION 531.407 OF TITLE 5, CODE OF FEDERAL REGULATIONS. SUBSECTION 531.407(E) PROVIDES FOR AN APPEAL TO THE BOARD OF APPEALS AND REVIEW FROM THE DECISION OF AN AGENCY SUSTAINING A NEGATIVE DETERMINATION AS TO AN EMPLOYEE'S LEVEL OF COMPETENCE. SUBSECTIONS (E)(3) AND (4) PROVIDE:

(3) THE DECISION OF THE BOARD IS FINAL AND COMPLIANCE WITH ITS RECOMMENDATIONS FOR CORRECTIVE ACTION IS MANDATORY.

(4) THE COMMISSION MAY, IN THEIR DISCRETION, WHEN IN THEIR JUDGMENT SUCH ACTION APPEARS WARRANTED BY THE CIRCUMSTANCES, REOPEN AND RECONSIDER ANY PREVIOUS DECISION.

UNDER THE ABOVE CITED LAW AND REGULATIONS, WHEN A NEGATIVE DETERMINATION IS CHANGED, EITHER BY AN EMPLOYEE'S AGENCY ON RECONSIDERATION OR BY THE BOARD OF APPEALS AND REVIEW UPON APPEAL TO THE CIVIL SERVICE COMMISSION, THE CHANGE SUPERSEDES THE NEGATIVE DETERMINATION AND THE EFFECTIVE DATE OF THE WITHIN-GRADE INCREASE IS THE DATE ON WHICH IT OTHERWISE BECAME DUE. THEREAFTER AN EMPLOYEE IS ENTITLED TO THE ADDITIONAL COMPENSATION HE WOULD HAVE RECEIVED HAD THE WITH-IN GRADE INCREASE TAKEN EFFECT AT THE EARLIER DATE. HOWEVER, UNTIL SUCH A CHANGE TAKES PLACE, THE EMPLOYEE HAS NO CLAIM FOR THE ADDITIONAL COMPENSATION. AS INDICATED IN THE REGULATIONS, WITH THE EXCEPTION OF DISCRETIONARY REOPENING BY THE COMMISSIONERS, DECISIONS OF THE BOARD OF APPEALS AND REVIEW ARE FINAL IN SUCH MATTERS AND THERE IS NO BASIS FOR FURTHER ADMINISTRATIVE REVIEW.

ACCORDINGLY, SINCE THE ORIGINAL NEGATIVE DETERMINATION IN MR. HOLT'S CASE HAS BEEN UPHELD BY BOTH THE AGENCY AND THE BOARD OF APPEALS AND REVIEW, THERE IS NO BASIS UNDER WHICH MR. HOLT'S CLAIM FOR ADDITIONAL COMPENSATION MAY BE ALLOWED.

AS TO MR. HOLT'S REQUEST FOR REIMBURSEMENT OF UNUSED PARKING FEES BECAUSE HIS PLACE OF EMPLOYMENT WAS RELOCATED DURING THE MIDDLE OF A MONTH FOR WHICH MR. HOLT HAD PAID A FULL MONTH'S PARKING FEES AT HIS OLD PLACE OF EMPLOYMENT, HE IS APPARENTLY BASING HIS CLAIM ON THE GROUNDS THAT HE DID NOT RECEIVE PROPER ADVANCE NOTICE OF THE CHANGE. WE ARE AWARE OF NO LAW OR REGULATION WHICH IMPOSES A DUTY UPON AN AGENCY TO GIVE A CERTAIN AMOUNT OF NOTICE TO EMPLOYEES WHEN RELOCATING OFFICES WITHIN THE SAME GENERAL AREA. FURTHER, THE ADMINISTRATIVE REPORT IN THE MATTER INDICATES THAT MR. HOLT SHOULD REASONABLY HAVE BEEN AWARE OF THE PROBABILITY THAT HIS OFFICE WOULD BE RELOCATED DURING THE MONTH IN QUESTION. THE LAW PROVIDES THAT AN EMPLOYEE MAY BE REIMBURSED FOR THE COST OF PARKING WHEN HE IS AUTHORIZED TO USE HIS CAR ON OFFICIAL BUSINESS (47 COMP. GEN. 219 (1967)); OTHERWISE, HOWEVER, PARKING IS A PERSONAL EXPENSE OF EACH EMPLOYEE.

ACCORDINGLY, THERE IS NO BASIS UNDER WHICH MR. HOLT'S CLAIM FOR UNUSED PARKING MAY BE ALLOWED AND THE PREVIOUS DISALLOWANCE OF HIS CLAIM IS SUSTAINED.