B-182273, JAN 27, 1975, 54 COMP GEN 622

B-182273, JAN 27, 1975, 54 COMP GEN 622

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - NONSELECTION DUE TO DISCRIMINATION AGENCY DETERMINED APPLICANT'S NONSELECTION WAS BASED ON DISCRIMINATION. ALTHOUGH APPLICANT DECLINED SUBSEQUENT OFFER OF POSITION, SHE IS ENTITLED TO BACK PAY FROM DATE OF NONSELECTION TO DECLINATION OF OFFER. APPLICABLE RETIREMENT DEDUCTIONS SHOULD BE MADE AGAINST GROSS SALARY ENTITLEMENT EVEN THOUGH AMOUNT PAYABLE IS REDUCED BY INTERIM EARNINGS.

IN THE MATTER OF BACK PAY - NONSELECTION DUE TO DISCRIMINATION, JANUARY 27, 1975:

THE INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY, SUBMITTED A VOUCHER IN THE AMOUNT OF $516.89 IN FAVOR OF MRS. KATHLEEN M. BRINKMAN FOR BACK PAY UNDER THE PROVISIONS OF 5 C.F.R. SEC. 713.271(A)(1) (1974) RELATING TO REMEDIAL ACTION FOR EMPLOYMENT DISCRIMINATION. THE SERVICE REQUESTED OUR DECISION, ASSUMING THE VOUCHER WAS PROPERLY PAYABLE, AS TO THE AMOUNT OF RETIREMENT DEDUCTIONS TO BE MADE.

THE FACTS IN SUMMARY WERE STATED IN AN ATTACHMENT TO THE SUBMISSION AS FOLLOWS:

ON JULY 2, 1974, MRS. BRINKMAN FILED A SEX DISCRIMINATION COMPLAINT WITH THE CINCINNATI REGIONAL EEO OFFICER. MRS. BRINKMAN ALLEGED DISCRIMINATION BECAUSE SHE WAS NOT SELECTED FOR A LAW CLERK TRAINEE (EXCEPTED APPOINTMENT) POSITION.

AN INVESTIGATION WAS CONDUCTED BY A DULY AUTHORIZED EEO INVESTIGATOR. OUR REVIEW OF THE INVESTIGATION REPORT INDICATED THAT MRS. BRINKMAN HAD BEEN DISCRIMINATED AGAINST BECAUSE OF HER SEX. AS PROVIDED BY FPM SECTION 713.271(A)(1), WE DETERMINED THAT EXCEPT FOR THE DISCRIMINATION, MRS. BRINKMAN WOULD HAVE BEEN HIRED. WE OBTAINED THE CONCURRANCE OF THIS DETERMINATION, AS REQUIRED BY TPM 713-B 11(A)(1), FROM THE ACTING DISTRICT DIRECTOR DONALD E. BERGHERM AND THE ACTING REGIONAL COMMISSIONER PATRICK RUTTLE. AN OFFER OF EMPLOYMENT OF THE TYPE AND GRADE DENIED MRS. BRINKMAN WAS MADE TO HER ON AUGUST 19, 1974.

MRS. BRINKMAN DECLINED OUR OFFER OF EMPLOYMENT AND THEREFORE, IN ACCORDANCE WITH FPM SECTION 713.271(A)(1) AND TPM 713-B-19A(1)(B) IS ENTITLED TO A LUMP-SUM PAYMENT EQUAL TO THE BACK PAY SHE WOULD HAVE RECEIVED FROM THE DATE SHE WOULD HAVE BEEN APPOINTED (6-10-74) TO THE DATE THE OFFER OF APPOINTMENT WAS MADE (8-19-74).

THE AMOUNT OF $516.89, SHOWN ON THE VOUCHER, WAS COMPUTED AS FOLLOWS:

A. DATE OF "WOULD BE" APPOINTMENT TO "REFUSAL" OF OFFER, 6-10-74 TO 8 21- 74, 10 WEEKS AND 3 DAYS AT

$4.793 PER HOUR $2,032.23

B. FOR 5 PAY PERIODS, 20 HOURS OF ANNUAL LEAVE EARNED AT

$4.793 PER HOUR 95.86

$2,128.09

C. SAME PERIOD EMPLOYED WITH CINCINNATI GAS & ELECTRIC COMPANY AT

$3.80 PER HOUR $1,611.20

D. DIFFERENCE $516.89

IN ADDITION TO PROPRIETY OF PAYMENT, THE AGENCY ASKED WHETHER THE CIVIL SERVICE RETIREMENT OF 7 PERCENT IS TO BE MADE FROM THE GROSS AMOUNT OF $2,128.09 OR THE NET AMOUNT OF $516.89.

THE PROVISIONS OF 5 C.F.R. SEC. 713.271(A)(1) READ AS FOLLOWS:

REMEDIAL ACTIONS

713.271 REMEDIAL ACTIONS.

(A) REMEDIAL ACTION INVOLVING AN APPLICANT. (1) WHEN AN AGENCY, OR THE COMMISSION, FINDS THAT AN APPLICANT FOR EMPLOYMENT HAS BEEN DISCRIMINATED AGAINST AND EXCEPT FOR THAT DISCRIMINATION WOULD HAVE BEEN HIRED, THE AGENCY SHALL OFFER THE APPLICANT EMPLOYMENT OF THE TYPE AND GRADE DENIED HIM. THE OFFER SHALL BE MADE IN WRITING. THE INDIVIDUAL SHALL HAVE 15 CALENDAR DAYS FROM RECEIPT OF THE OFFER WITHIN WHICH TO ACCEPT OR DECLINE THE OFFER. FAILURE TO NOTIFY THE AGENCY OF HIS DECISION WITHIN THE 15-DAY PERIOD WILL BE CONSIDERED A DECLINATION OF THE OFFER, UNLESS THE INDIVIDUAL CAN SHOW THAT CIRCUMSTANCES BEYOND HIS CONTROL PREVENTED HIM FROM RESPONDING WITHIN THE TIME LIMIT. IF THE OFFER IS ACCEPTED, APPOINTMENT SHALL BE RETROACTIVE TO THE DATE THE APPLICANT WOULD HAVE BEEN HIRED, SUBJECT TO THE LIMITATION IN SUBPARAGRAPH (4) OF THIS PARAGRAPH. BACK PAY, COMPUTED IN THE SAME MANNER PRESCRIBED BY SEC. 550.804 OF THIS CHAPTER, SHALL BE AWARDED FROM THE BEGINNING OF THE RETROACTIVE PERIOD, SUBJECT TO THE SAME LIMITATION, UNTIL THE DATE THE INDIVIDUAL ACTUALLY ENTERS ON DUTY. THE INDIVIDUAL SHALL BE DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THIS PERIOD OF RETROACTIVITY FOR ALL PURPOSES EXCEPT FOR MEETING SERVICE REQUIREMENTS FOR COMPLETION OF A PROBATIONARY OR TRIAL PERIOD THAT IS REQUIRED. IF THE OFFER IS DECLINED, THE AGENCY SHALL AWARD THE INDIVIDUAL A SUM EQUAL TO THE BACK PAY HE WOULD HAVE RECEIVED, COMPUTED IN THE SAME MANNER PRESCRIBED BY SEC. 550.804 OF THIS CHAPTER, FROM THE DATE HE WOULD HAVE BEEN APPOINTED UNTIL THE DATE THE OFFER WAS MADE, SUBJECT TO THE LIMITATION OF SUBPARAGRAPH (4) OF THIS PARAGRAPH. THE AGENCY SHALL INFORM THE APPLICANT, IN ITS OFFER, OF HIS RIGHT TO THIS AWARD IN THE EVENT HE DECLINES THE OFFER.

SINCE THE AGENCY FINDINGS AS TO THE FACTS APPEAR TO BE WITHIN SEC. 713.271(A)(1), THE PAYMENT AS PROPOSED WOULD BE PROPER. WITH RESPECT TO CIVIL SERVICE RETIREMENT DEDUCTIONS, IT SHOULD BE NOTED THAT THE PROVISIONS OF 5 C.F.R. 713.271, SUPRA, THAT THE ENTIRE PERIOD OF "RETROACTIVITY" - I.E., THE PERIOD BETWEEN THE DATE SHE SHOULD HAVE BEEN HIRED AND THE DATE SHE WAS OFFERED EMPLOYMENT - IS TO BE TREATED AS A PERIOD OF "SERVICE" FOR ALL PURPOSES EXCEPT FULFILLING PROBATIONARY REQUIREMENTS. THEREFORE, ALL FEDERAL PAY EARNED DURING THAT PERIOD IS SUBJECT TO DEDUCTIONS FOR RETIREMENT FUND CONTRIBUTIONS IN THE ABSENCE OF ANY CIVIL SERVICE REGULATION STATING OTHERWISE. 28 COMP. GEN. 333 (1948); 34 ID. 657 (1955).

ACCORDINGLY, THE AMOUNT OF CIVIL SERVICE RETIREMENT DEDUCTIONS IS TO BE MADE AGAINST THE GROSS AMOUNT OF $2,128.09, WHICH REPRESENTS THE TOTAL EARNINGS SUBJECT TO RETIREMENT DEDUCTIONS.