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B-195253, JAN 8, 1980

B-195253 Jan 08, 1980
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EMPLOYEE HAS NO ENTITLEMENT TO BACK PAY SINCE DETAIL WAS NOT TO ESTABLISHED POSITION CLASSIFIED AT HIGHER GRADE. CLAIM IS FOR WRONGFUL CLASSIFICATION FOR WHICH BACK PAY MAY NOT BE ALLOWED. LOUIS - CLAIM FOR BACK PAY FOR EXTENDED DETAIL: THIS DECISION IS IN RESPONSE TO THE APPEAL BY MR. THE ISSUE PRESENTED FOR OUR DECISION IS WHETHER MR. LOUIS IS ENTITLED TO A RETROACTIVE PROMOTION UNDER OUR TURNER-CALDWELL DECISIONS. LOUIS CLAIMS THAT WHILE HE WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY HE PERFORMED DUTIES OUTSIDE OF HIS POSITION DESCRIPTION FOR THE PERIOD FROM FEBRUARY 6. OUR CLAIMS DIVISION SETTLEMENT DENIED HIS CLAIM ON THE GROUND THAT HE WAS NOT DETAILED TO AN ESTABLISHED POSITION CLASSIFIED AT A HIGHER GRADE.

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B-195253, JAN 8, 1980

DIGEST: DEPARTMENT OF THE ARMY EMPLOYEE CLAIMS RETROACTIVE PROMOTION AND BACK PAY WHILE PERFORMING HIGHER LEVEL DUTIES IN VIEW OF TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). EMPLOYEE HAS NO ENTITLEMENT TO BACK PAY SINCE DETAIL WAS NOT TO ESTABLISHED POSITION CLASSIFIED AT HIGHER GRADE, AND IN ABSENCE OF DETAIL TO SUCH POSITION, CLAIM IS FOR WRONGFUL CLASSIFICATION FOR WHICH BACK PAY MAY NOT BE ALLOWED. UNITED STATES V. TESTAN, 424 U.S. 392 (1976).

BERNARD E. ST. LOUIS - CLAIM FOR BACK PAY FOR EXTENDED DETAIL:

THIS DECISION IS IN RESPONSE TO THE APPEAL BY MR. BERNARD E. ST. LOUIS OF OUR CLAIMS DIVISION SETTLEMENT DENYING HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY INCIDENT TO AN EXTENDED DETAIL FROM GS-9 TO GS-11. THE ISSUE PRESENTED FOR OUR DECISION IS WHETHER MR. ST. LOUIS IS ENTITLED TO A RETROACTIVE PROMOTION UNDER OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977).

MR. ST. LOUIS CLAIMS THAT WHILE HE WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY HE PERFORMED DUTIES OUTSIDE OF HIS POSITION DESCRIPTION FOR THE PERIOD FROM FEBRUARY 6, 1976, TO SEPTEMBER 9, 1977. OUR CLAIMS DIVISION SETTLEMENT DENIED HIS CLAIM ON THE GROUND THAT HE WAS NOT DETAILED TO AN ESTABLISHED POSITION CLASSIFIED AT A HIGHER GRADE, AS REQUIRED BY LATER COMPTROLLER GENERAL DECISIONS AND CIVIL SERVICE COMMISSION BULLETIN NO. 300-40, MAY 15, 1977. MR. ST. LOUIS ARGUES THAT TO REQUIRE THE EXISTENCE OF AN ESTABLISHED POSITION IS TO DENY ANY REMEDY TO AN EMPLOYEE ASSIGNED TO A JOB OR TO DUTIES WHERE THERE IS NO ESTABLISHED POSITION. IN HIS LETTER OF APPEAL MR. ST. LOUIS ALSO CLAIMS HE WAS VERBALLY DETAILED TO AN ABOLISHED POSITION FOR THE PERIOD FROM JANUARY 31, 1978, TO NOVEMBER 27, 1978, FOR WHICH HE ALSO SEEKS A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-11 AND BACK PAY.

OUR OFFICE HAS HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER GRADE POSITION AND THE AGENCY FAILS TO SEEK CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) APPROVAL TO EXTEND THE DETAIL FOR A PERIOD BEYOND 120 DAYS, THE AGENCY MUST AWARD THE EMPLOYEE A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY IF HE CONTINUES TO PERFORM THOSE HIGHER GRADE DUTIES. TURNER-CALDWELL, SUPRA. IT IS ESSENTIAL, HOWEVER, THAT THE EMPLOYEE BE DETAILED TO AN ESTABLISHED HIGHER GRADE POSITION IN ORDER TO RECEIVE BACK PAY. SEE CHARLES W. MCGINNIS, B-192961, JULY 9, 1979, AND DECISIONS CITED THEREIN.

AN EMPLOYEE MAY NOT BE PROMOTED TO A POSITION WHICH HAS NOT BEEN CLASSIFIED AND, THEREFORE, HE MAY NOT BE AFFORDED THE REMEDY UNDER OUR TURNER-CALDWELL DECISIONS OF A TEMPORARY PROMOTION AND BACK PAY. SEE HUBERT J. BUTEAU, B-187287, MAY 13, 1977. THE PROPER COURSE OF ACTION IN SUCH A CASE IS TO FILE A POSITION CLASSIFICATION APPEAL WITH THE EMPLOYING AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT. SEE DORIS M. PALMER, B-192720, SEPTEMBER 14, 1979, AND 5 C.F.R. PART 511, SUBPART F.

IT APPEARS THAT MR. ST. LOUIS DID FILE A CLASSIFICATION APPEAL FOR THE PERIOD FROM FEBRUARY 6, 1976, TO SEPTEMBER 9, 1977, BUT HIS APPEAL WAS DENIED BY THE DEPARTMENT OF THE ARMY. IN THIS REGARD THE UNITED STATES SUPREME COURT HAS HELD IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), THAT NEITHER THE CLASSIFICATION ACT, 5 U.S.C. SECS. 5101-5115 (1976), NOR THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), CREATES A SUBSTANTIVE RIGHT TO BACK PAY FOR PERIODS OF WRONGFUL POSITION CLASSIFICATION. THUS, IN THE ABSENCE OF AN ESTABLISHED POSITION, MR. ST. LOUIS' CLAIM IS FOR WRONGFUL POSITION CLASSIFICATION AND OUR TURNER CALDWELL DECISIONS ARE NOT APPLICABLE.

ACCORDINGLY, WE SUSTAIN OUR CLAIMS DIVISION DENIAL OF MR. ST. LOUIS' CLAIM.

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