B-181319, MAR 20, 1975

B-181319: Mar 20, 1975

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UNDER THE "HIGHEST PREVIOUS RATE" RULE INCIDENT TO HIS REASSIGNMENT AT A TIME WHEN THE CLASSIFICATION ACT PAY STRUCTURE HAD 7 SCHEDULED STEPS AND 3 LONGEVITY STEPS DO NOT ENTITLE EMPLOYEE TO ADDITIONAL COMPENSATION SINCE THERE IS NO FINDING UNDER 5 U.S.C. 5596 THAT HE UNDERWENT AN UNJUSTIFIED PERSONNEL ACTION. THE "HIGHEST PREVIOUS RATE" RULE WAS PROPERLY APPLIED. WAS CALLED UPON TO PERFORM WORK FOR THE FOREIGN HYDROLOGY SECTION (FHS) OF THE WATER RESOURCES DIVISION OF USGS. A REQUEST WAS MADE TO TRANSFER MR. THIS REASSIGNMENT WAS DELAYED IN ORDER TO GIVE MR. BRADFORD WAS CONVERTED FROM GS 7. BECAUSE HIS NEW JOB WAS UNDER THE CLASSIFICATION ACT. BRADFORD WAS OCCUPYING A WAGE BOARD POSITION.

B-181319, MAR 20, 1975

PART-TIME USE OF AN EMPLOYEE'S SERVICES BY ANOTHER AGENCY DIVISION FOR 4 YEARS AND THE EMPLOYEE'S SUBSEQUENT LOSS OF COMPENSATION DUE TO PLACING HIM IN GS-7, STEP G, UNDER THE "HIGHEST PREVIOUS RATE" RULE INCIDENT TO HIS REASSIGNMENT AT A TIME WHEN THE CLASSIFICATION ACT PAY STRUCTURE HAD 7 SCHEDULED STEPS AND 3 LONGEVITY STEPS DO NOT ENTITLE EMPLOYEE TO ADDITIONAL COMPENSATION SINCE THERE IS NO FINDING UNDER 5 U.S.C. 5596 THAT HE UNDERWENT AN UNJUSTIFIED PERSONNEL ACTION, HIS AGENCY FOUND HIM TO BE PROPERLY CLASSIFIED, AND THE "HIGHEST PREVIOUS RATE" RULE WAS PROPERLY APPLIED.

GARY M. BRADFORD - CLAIM FOR BACK PAY:

THIS REFERS TO THE APPEAL BY MR. GARY M. BRADFORD FROM A SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED SEPTEMBER 25, 1972, DENYING HIS CLAIM FOR RETROACTIVE ADJUSTMENT OF PAY.

THE RECORD SHOWS THAT DURING THE PERIOD JULY 1958 TO JUNE 1962, MR. BRADFORD, THEN A SCIENTIFIC ILLUSTRATOR IN THE BRANCH OF TECHNICAL ILLUSTRATIONS (BTI), PUBLICATIONS DIVISION, U.S. GEOLOGICAL SURVEY (USGS), DEPARTMENT OF THE INTERIOR, WAS CALLED UPON TO PERFORM WORK FOR THE FOREIGN HYDROLOGY SECTION (FHS) OF THE WATER RESOURCES DIVISION OF USGS. DURING THIS INTERVAL, MR. BRADFORD WORKED AN AVERAGE OF 2 DAYS PER WEEK AT BTI AND 3 DAYS AT FHS.

SUBSEQUENTLY, ON JUNE 15, 1962, A REQUEST WAS MADE TO TRANSFER MR. BRADFORD FROM THE PUBLICATIONS DIVISION TO THE WATER RESOURCES DIVISION AT HIS THEN CURRENT RATE OF PAY - GS-7, STEP F - $6,180 PER ANNUM. RATHER THAN PROCESS THIS PERSONNEL ACTION IMMEDIATELY, THIS REASSIGNMENT WAS DELAYED IN ORDER TO GIVE MR. BRADFORD THE BENEFIT OF THE INCREASE IN COMPENSATION THAT HE WOULD REALIZE DUE TO THE CIVIL SERVICE COMMISSION'S ORDERED CONVERSION OF HIS JOB FROM ONE UNDER THE CLASSIFICATION ACT TO A WAGE BOARD POSITION. AS A CONSEQUENCE OF THIS PAY SYSTEM CHANGE, ON JULY 22, 1962, MR. BRADFORD WAS CONVERTED FROM GS 7, STEP F - $6,180 PER ANNUM - TO WB-16 - $3.22 PER HOUR, $6698 PER ANNUM.

THE RECORD FURTHER SHOWS THAT ON AUGUST 5, 1962, PURSUANT TO HIS REQUEST, MR. BRADFORD RETURNED TO A CLASSIFICATION ACT POSITION IN THE WATER RESOURCES DIVISION AS A CARTOGRAPHIC TECHNICIAN. BECAUSE HIS NEW JOB WAS UNDER THE CLASSIFICATION ACT, AND IMMEDIATELY PRIOR TO HIS REASSIGNMENT MR. BRADFORD WAS OCCUPYING A WAGE BOARD POSITION, USGS APPLIED THE "HIGHEST PREVIOUS RATE" RULE AND DETERMINED THAT THE PROPER RATE OF PAY TO BE PAID MR. BRADFORD IN THE WATER RESOURCES DIVISION WAS AT GS-7, STEP G, $6,345 PER ANNUM. AS A RESULT MR. BRADFORD SUFFERED A LOSS OF $353 IN ANNUAL COMPENSATION.

ON MARCH 15, 1964, MR. BRADFORD WAS PROMOTED TO GRADE GS-9, DUE TO A POSITION RECLASSIFICATION WHICH TOOK INTO ACCOUNT THE ASSUMPTION OF GREATER JOB RESPONSIBILITIES AND DIFFICULTIES. HE RECEIVED NO FURTHER PROMOTIONS AND SUBSEQUENTLY ALLEGED THAT HIS POSITION WAS MISCLASSIFIED AT GS-9 INSTEAD OF GS-11 AND FILED A GRIEVANCE WITH USGS. WHEN HIS GRIEVANCE WAS NOT SETTLED TO HIS SATISFACTION MR. BRADFORD FILED A CLAIM FOR RETROACTIVE ADJUSTMENT OF COMPENSATION. HIS CLAIM WAS DENIED ON THE GROUNDS THAT USGS DETERMINED HIS POSITION WAS PROPERLY CLASSIFIED, THAT EMPLOYEES ARE ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH APPOINTED, AND UPON DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND HIS AGENCY, THE RULE OF THIS OFFICE IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.

MR. BRADFORD HAS APPEALED THE DENIAL OF HIS CLAIM FOR BACK PAY BASICALLY FOR THE FOLLOWING REASONS: (1), HE BELIEVES THAT DURING THE PERIOD 1958 TO 1962 WHEN HE WORKED ON A LOAN BASIS TO FHS THAT HE LOST SENIORITY AND THE OPPORTUNITY FOR PROMOTION IN HIS OFFICIAL POSITION, AND (2), HE BELIEVES THAT HIS LOSS OF WAGE BOARD CLASSIFICATION WHEN HE WAS REASSIGNED TO THE WATER RESOURCES DIVISION AS A CARTOGRAPHIC TECHNICIAN, GRADE GS-7, STEP G, WITH THE ATTENDANT REDUCTION IN COMPENSATION WAS A LOSS OF RANK NOT HANDLED IN ACCORDANCE WITH THE CONTROLLING ADVERSE ACTION REGULATIONS. BECAUSE MR. BRADFORD CONSIDERS THESE TWO MATTERS TO HAVE CONSTITUTED UNJUSTIFIED PERSONNEL ACTIONS, HE HAS MADE A CLAIM FOR BACK PAY UNDER 5 U.S.C. SEC. 5596 (1970).

SECTION 5596(B) OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF HIS PAY, IS ENTITLED ON CORRECTION OF THE PERSONNEL ACTION TO RECEIVE BACK PAY. THIS CASE THERE HAS BEEN NO DETERMINATION THAT MR. BRADFORD HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AND, CONSEQUENTLY THERE IS NO IMPROPER ACTION TO CORRECT. MOREOVER, THE CLASSIFICATION OF A POSITION IS PRIMARILY A FUNCTION OF THE AGENCY AND OF THE CIVIL SERVICE COMMISSION (CSC) ON APPEAL AND MR. BRADFORD'S AGENCY HAS HELD THAT MR. BRADFORD'S POSITION WAS PROPERLY CLASSIFIED. THEREFORE, THERE IS NO BASIS FOR OUR OFFICE TO ALLOW BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5596.

CONCERNING THE LOAN OF MR. BRADFORD'S SERVICES DURING THE PERIOD 1958 - 1962, INFORMATION FURNISHED TO THIS OFFICE BY THE DEPARTMENT OF INTERIOR ESTABLISHES THAT MR. BRADFORD'S PERSONNEL OFFICE ALSO QUESTIONED THIS ARRANGEMENT. THE RECORD SHOWS THAT USGS CONCLUDED THE LOAN OF MR. BRADFORD'S SERVICES CONSTITUTED A JOB "MIX" AND NOT A TRUE DETAIL. MR. BRADFORD DOES NOT AGREE, BUT BASED UPON THE RECORD BEFORE US IN THE PRESENT CASE, WE HAVE NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION.

AS REGARDS MR. BRADFORD'S ASSERTION THAT THE LOAN OF HIS SERVICES FOR ALMOST 4 YEARS (WHETHER AS A DETAIL OR JOB MIX) DEPRIVED HIM OF PROMOTIONAL CONSIDERATION, WE POINT OUT THAT THE PROMOTION OF AN EMPLOYEE IS A MATTER OF DISCRETION LYING WITH AN EMPLOYEE'S ADMINISTRATIVE AGENCY; AND THAT AN EMPLOYEE DOES NOT HAVE A LEGAL RIGHT TO A PROMOTION. POINTED OUT ABOVE, CLASSIFICATION OF A POSITION IS PRIMARILY A FUNCTION OF THE AGENCY AND CSC. SIMILARLY QUALIFYING EXPERIENCE FOR DETERMINING CLASSIFICATION IS PRIMARILY AN ADMINISTRATIVE FUNCTION. WE DO NOT BELIEVE THAT MR. BRADFORD HAS STATED A BASIS UPON WHICH TO AWARD HIM BACK PAY ARISING OUT OF THE 4 YEAR JOB "MIX", SINCE USGS HAS HELD THAT HIS CLASSIFICATION IS PROPER AND FOLLOWING THE CROSS TRAINING HE WAS PROMOTED TO GS-9.

WITH RESPECT TO MR. BRADFORD'S CLAIM FOR BACK PAY DUE TO THE LOSS OF COMPENSATION INCIDENT TO HIS REASSIGNMENT TO THE WATER RESOURCES DIVISION, WE NOTE THAT, AT THE TIME OF THE REASSIGNMENT, THE SALARY STRUCTURE OF GRADE GS-7 UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, CONSISTED OF SEVEN REGULAR STEPS (A-G) AND THREE LONGEVITY STEPS (X,Y,Z). IT WAS CUSTOMARY TO REFER TO THE SEVENTH REGULAR STEP (STEP G) AS THE "TOP OF GRADE." APPLICATION OF THE "HIGHEST PREVIOUS RATE" RULE THEN, AS IT IS NOW, WAS A MATTER OF DISCRETION WITH AN EMPLOYEE'S ADMINISTRATIVE AGENCY, AND SUCH APPLICATION WAS NOT CONSTRUED SO AS TO MANDATE THE PLACEMENT OF AN EMPLOYEE IN THE LONGEVITY STEPS OF HIS NEW GRADE - THE FIRST SEVEN STEPS OF EACH GS GRADE BEING USED IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE, EXCLUSIVE OF THE LONGEVITY STEPS.

AT THE TIME OF MR. BRADFORD'S REASSIGNMENT TO THE WATER RESOURCES DIVISION, HE WAS EARNING $6,698 PER ANNUM AS A WAGE BOARD EMPLOYEE. SINCE HE WAS REASSIGNED INTO A GRADE GS-7 CLASSIFICATION ACT POSITION, APPLICATION OF THE "HIGHEST PREVIOUS RATE" RULE, WITHOUT REGARD TO THE EXCLUSION OF THE LONGEVITY STEPS, WOULD HAVE PLACED HIM AT GRADE GS-7, LONGEVITY STEP Z - $6,840 PER ANNUM (HIS WAGE BOARD SALARY OF $6,698 PER ANNUM WAS BETWEEN GS-7, LONGEVITY STEP Y - $6,675 PER ANNUM AND GS 7, LONGEVITY STEP Z - $6,840 PER ANNUM). HOWEVER, BECAUSE, AS NOTED ABOVE, THE APPLICATION OF THE "HIGHEST PREVIOUS RATE" RULE WAS LIMITED TO THE FIRST SEVEN SCHEDULED STEPS OF A GRADE, MR. BRADFORD WAS PUT INTO THE TOP OF GRADE GS-7 - GRADE GS-7, STEP G - $6,345 PER ANNUM. IN OUR VIEW THIS APPLICATION OF THE RULE IN MR. BRADFORD'S CASE WAS PROPER.

THE RECORD SHOWS MR. BRADFORD WAS COUNSELED AS TO THE LOSS IN COMPENSATION THAT WOULD OCCUR WITH HIS REASSIGNMENT AND THERE APPEARS IN THE RECORD A REQUEST BY HIM DATED AUGUST 3, 1962, THAT HE BE REASSIGNED. THE REQUEST READS AS FOLLOWS:

"THIS IS TO REQUEST THAT I BE ASSIGNED FROM MY PRESENT POSITION (NEGATIVE ENGRAVER, WB-16, $3.22 PER HOUR) IN THE BRANCH OF TECHNICAL ILLUSTRATIONS TO THE POSITION OF CARTOGRAPHIC TECHNICIAN (GENERAL), GS 1371-7, $6345 PER ANNUM, IN THE PUBLICATIONS SECTION, WATER RESOURCES DIVISION."

IN OUR VIEW, THIS STATEMENT ESTABLISHES HIS AWARENESS OF HIS LOSS IN COMPENSATION UPON REASSIGNMENT AND THE VOLUNTARINESS OF THE REASSIGNMENT ON MR. BRADFORD'S PART. IN THE LIGHT OF THE FOREGOING IT APPEARS THAT THE MANNER IN WHICH MR. BRADFORD'S REASSIGNMENT WAS HANDLED WAS PROPER AND DID NOT CONSTITUTE AN ADVERSE ACTION.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION DENYING MR. BRADFORD'S CLAIM IS SUSTAINED.