B-189109, OCTOBER 5, 1977

B-189109, OCTOBER 5, 1977

WAGE GRADE EMPLOYEES OF VETERANS ADMINISTRATION CLAIM RETROACTIVE PROMOTIONS AND BACK PAY FOR PERIOD OF ALLEGED WRONGFUL CLASSIFICATION. CLAIMANTS HAVE NO ENTITLEMENT TO BACK PAY UNDER CIVIL SERVICE REGULATIONS OR 5 U.S.C. 5346 (SUPP. II, 1972) WHICH AUTHORIZES JOB GRADING SYSTEM FOR PREVAILING RATE EMPLOYEES. SUPREME COURT HELD IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976) THAT THERE IS NO ENTITLEMENT TO BACK PAY FOR PERIODS OF ERRONEOUS CLASSIFICATION UNDER EITHER BACK PAY ACT, 5 U.S.C. 5596 (1970), OR PERTINENT CLASSIFICATION STATUTES WHICH DID NOT EXPRESSLY PROVIDE FOR BACK PAY.

LINDA PALERMO AND EMMETT GRUBBS, JR. - REQUEST FOR RETROACTIVE PROMOTION AND BACK PAY:

BY LETTER DATED MAY 11, 1977, THE VETERANS ADMINISTRATION HAS REQUESTED OUR DECISION CONCERNING THE CLAIMS OF MRS. LINDA PALERMO AND MR. EMMETT GRUBBS, JR., WG-3 EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, ERIE, PENNSYLVANIA, FOR BACK PAY FOR THE PERIOD FEBRUARY 10, 1976, TO SEPTEMBER 26, 1976.

THE RECORD SHOWS THAT MRS. PALERMO AND MR. GRUBBS BOTH OCCUPIED THE POSITION OF FOOD AND SERVICE WORKER, WG-2. ON JUNE 23, 1976, CLAIMANTS' SUPERVISOR, THE CHIEF, DIETETIC SERVICE, ADVISED THE HOSPITAL'S PERSONNEL OFFICER THAT SHE HAD CONDUCTED A REVIEW OF CLAIMANTS DUTIES WHICH SHOWED THAT THEY WERE PERFORMING DUTIES AT THE WG-3 LEVEL. A SUBSEQUENT DESK AUDIT OF CLAIMANTS' POSITIONS CONDUCTED BY THE PERSONNEL OFFICER DISCLOSED THAT AN ACCRETION OF HIGHER LEVEL DUTIES HAD OCCURRED AND THAT CLAIMANTS WERE PERFORMING SOME DUTIES AT THE WG-3 LEVEL. AS A RESULT, THE POSITIONS IN QUESTION WERE UPGRADED AND CLAIMANTS AND OTHERS WERE PROMOTED TO GRADE WG-3 ON SEPTEMBER 26, 1976.

THE GENERAL RULE IN CASES OF THIS NATURE IS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED, REGARDLESS OF THE DUTIES HE PERFORMS. WHEN AN EMPLOYEE PERFORMS DUTIES NORMALLY PERFORMED BY ONE IN A GRADE LEVEL HIGHER THAN ONE HE HOLDS, HE IS NOT ENTITLED TO THE SALARY OF THE HIGHER LEVEL UNTIL SUCH TIME AS HE IS PROMOTED TO THE HIGHER LEVEL. MATTER OF NORMAN M. RUSSELL, B-183218, MARCH 31, 1975.

THE JOB GRADING OR CLASSIFICATION OF PREVAILING RATE POSITIONS IS GOVERNED BY THE PROVISIONS OF 5 U.S.C. 5346 (SUPP. II, 1972) WHICH EMPOWERS THE CIVIL SERVICE COMMISSION TO PRESCRIBE REGULATIONS REGARDING THE CLASSIFICATION OF POSITIONS.

SECTION 532.702(B)(11) OF TITLE 5, CODE OF FEDERAL REGULATIONS (1976) PROVIDES THAT EXCEPT WHERE A CLASSIFICATION ACTION RESULTS IN A DOWNGRADING OR OTHER REDUCTION IN PAY, THE EFFECTIVE DATE OF A CHANGE OF CLASSIFICATION MAY NOT BE EARLIER THAN THE DATE OF THE DECISION NOR LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 60TH DAY FROM THE DATE THE APPLICATION WAS FILED. THE SOLE PROVISION FOR A RETROACTIVE EFFECTIVE DATE FOR CLASSIFICATION IS WHEN THERE IS A TIMELY APPEAL WHICH RESULTS IN THE REVERSAL, IN WHOLE OR PART, OF A DOWNGRADING OR OTHER CLASSIFICATION ACTION WHICH HAD RESULTED IN THE REDUCTION OF PAY. SEE 5 C.F.R. 532.702(B)(9). ACCORDINGLY, THE RECLASSIFICATION OF A POSITION MAY NOT BE MADE RETROACTIVELY OTHER THAN AS PROVIDED FOR IN 5 C.F.R. 532.702(B)(9).

IN UNITED STATES V. TESTAN, ET AL., 424 U.S. 392 (1976) THE UNITED STATES SUPREME COURT HELD THAT THERE IS NO SUBSTANTIVE RIGHT TO BACK PAY FOR PERIODS OF WRONGFUL POSITION CLASSIFICATION WHERE THE PERTINENT CLASSIFICATION STATUTES 5 U.S.C. 5101-5115 DID NOT EXPRESSLY MAKE THE UNITED STATES LIABLE FOR PAY LOST THROUGH AN IMPROPER CLASSIFICATION. NOTE THAT THE CLASSIFICATION STATUTE APPLICABLE IN THIS INSTANCE, 5 U.S.C. 5346 (SUPP. II, 1972), ALSO DOES NOT CONTAIN ANY EXPRESS PROVISION MAKING THE UNITED STATES LIABLE FOR PAY LOST DURING A PERIOD OF IMPROPER CLASSIFICATION. IN ADDITION, THE COURT HELD IN TESTAN, SUPRA, THAT THE BACK PAY ACT, 5 U.S.C. 5596 (1970) DID NOT AFFORD A REMEDY FOR PERIODS OF ERRONEOUS CLASSIFICATION.

IN VIEW OF THE SUPREME COURT'S HOLDING IN TESTAN AND SINCE NEITHER MRS. PALERMO NOR MR. GRUBBS QUALIFIES FOR RETROACTIVE PROMOTION AND BACK PAY UNDER THE ABOVE-DISCUSSED CIVIL SERVICE REGULATIONS, THERE IS NO AUTHORITY WHICH WOULD ALLOW THE CLAIM FOR BACK PAY FOR THE PERIOD THEY OCCUPIED POSITIONS CLASSIFIED AT WG-2. ACCORDINGLY, THE BACK PAY CLAIMED FOR THE PERIOD FROM FEBRUARY 10, 1976, TO SEPTEMBER 26, 1976, MAY NOT BE ALLOWED.