B-195373.OM, FEB 13, 1980

B-195373.OM, FEB 13, 1980

DETAIL CLAIMS OF GILBERT C. ATENCIO AND DALE T. EVANS, B-195373 O.M. SUBJECT:

DIRECTOR, CLAIMS DIVISION:

MR. ATENCIO'S AND MR. EVANS' CLAIMS WERE DENIED BY SETTLEMENT CERTIFICATE NO. Z-2805038 AND Z-2805039, DATED APRIL 10, 1979. BASED ON OUR REVIEW OF THE RECORD, WE BELIEVE THERE IS A SUFFICIENT BASIS TO CONCLUDE THAT THEY WERE DETAILED TO HIGHER GRADE POSITIONS UNDER CIRCUMSTANCES ENTITLING THEM TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR AT LEAST PART OF THE PERIOD CLAIMED.

MR. ATENCIO AND MR. EVANS WERE EMPLOYED BY THE DEPARTMENT OF THE TREASURY, UNITED STATES MINT, IN DENVER, COLORADO, AS MACHINE OPERATORS, WG-07. MR. ATENCIO CLAIMS THAT FROM NOVEMBER 2, 1970 THROUGH FEBRUARY 1977, HE WAS DETAILED TO PERFORM THE DUTIES OF A WEIGHER, WG-08. MR. EVANS CLAIMS THAT HE WAS DETAILED TO PERFORM THE DUTIES OF A WEIGHER, WG- 08, FROM MAY 4, 1970 THROUGH DECEMBER 1974, AND FROM JANUARY 1976 THROUGH FEBRUARY 1977. EVELYN DAVIDSON, THE SUPERINTENDENT OF THE DENVER MINT, ORIGINALLY RECOMMENDED TO THE BUREAU OF THE MINT THAT MR. EVANS AND MR. ATENCIO SHOULD BE GRANTED A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR PERIODS OF WORK AFTER MAY 1974. THE DIRECTOR OF THE MINT REJECTED THAT RECOMMENDATION AND DENIED BOTH CLAIMS ON THE BASIS THAT THEY INVOLVED QUESTIONS OF CLASSIFICATION RATHER THAN AN IMPROPER DETAIL. HIS LETTER OF DECEMBER 1, 1978, INDICATES THAT DURING THE PERIOD OF THE ALLEGED DETAIL, THERE WAS A CAREER LADDER WHEREBY EMPLOYEES WERE INITIALLY HIRED AT THE WG -5 LEVEL, PROGRESSED TO THE INTERMEDIATE WG-7 LEVEL, AND ULTIMATELY REACHED THE FULL PERFORMANCE LEVEL OF WG-8. BASED ON THE SAME RATIONALE, YOUR DIVISION'S SETTLEMENTS DENIED THE CLAIMS FOR THOSE PERIODS NOT OTHERWISE BARRED.

ON APPEAL, MR. EVANS' AND MR. ATENCIO'S DESIGNATED AGENT, LEO HART, ASKS THAT WE SPECIFICALLY CONSIDER THE MEMORANDA DATED NOVEMBER 16, 1977, SIGNED BY THE COUNTING AND REVIEW BRANCH FOREMAN AND THE ASSISTANT SUPERINTENDENT COINING DIVISION WHICH STATE THAT EACH CLAIMANT WAS DETAILED TO PERFORM THE DUTIES OF A WEIGHER, WG-08. MR. HART ALSO REFERS TO THE JOB DESCRIPTIONS FOR THE TWO POSITIONS AND RELIES ON THE LETTER BY EVELYN DAVIDSON, SUPERINTENDENT OF THE DENVER MINT, WHICH STATES THAT THE WEIGHER, WG-08, POSITION WAS A NON-CAREER LADDER POSITION TO REBUT THE ARGUMENT THAT THE DUTIES THE CLAIMANTS PERFORMED WERE PART OF A CAREER LADDER.

THE EVIDENCE IN THIS CASE IS SUFFICIENT TO ESTABLISH THAT MR. EVANS AND MR. ATENCIO DID IN FACT PERFORM THE DUTIES OF THE HIGHER-LEVEL POSITION. SINCE THERE IS NO CONTRADICTORY EVIDENCE IN THIS REGARD, THE WRITTEN STATEMENT SIGNED BY TWO SUPERVISORS MAY BE ACCEPTED AS ESTABLISHING THAT BOTH EMPLOYEES WERE DETAILED ON A DAILY BASIS TO PERFORM THE DUTIES OF A WEIGHER, WG-08.

THE EVIDENCE CONCERNING WHETHER THE EMPLOYEES WERE IN A CAREER LADDER WITH A POSITION INCLUDING THAT OF WEIGHER, WG-08, IS CONTRADICTORY. THE DIRECTOR OF THE MINT STATES THAT THE FULL PERFORMANCE LEVEL WAS WG-08 AND THAT THE WG-07 POSITION WAS AN INTERMEDIATE LEVEL. ALSO, THE RECOMMENDATION FOR SPECIAL ACHIEVEMENT AWARD COMPLETED IN MAY 1974, CONTAINS A STATEMENT THAT MR. EVANS AND MR. ATENCIO WERE IN TRAINING FOR WEIGHERS SINCE 1970. TO THE CONTRARY, THE EMPLOYEES CLAIM THAT THEY WERE NOT INVOLVED IN A CAREER LADDER SITUATION AND THAT THE WEIGHER, WG-08, POSITION WAS FILLED BY COMPETITIVE PROCEDURES. THE JOB DESCRIPTION FOR MACHINE OPERATORS, WG 07, LISTS FULL PERFORMANCE LEVEL POSITION DUTIES TO INCLUDE ASSISTING WITH THE WEIGHING OF THE SACKED COIN AND LOADING SACKS OF COIN DURING THE WEIGHING OPERATION. FURTHERMORE, THE RECOMMENDATION FOR SPECIAL ACHIEVEMENT AWARD STATES THAT MR. EVANS AND MR. ATENCIO HAD BEEN TRAINING OTHER MACHINE OPERATORS IN THE WEIGHING OPERATION. FINALLY, THE LETTER FROM EVELYN DAVIDSON, SUPERINTENDENT OF THE DENVER MINT, STATES THAT THE POSITION OF THE WEIGHER, WG-08, IS A NON-CAREER LADDER POSITION.

THE WG-07 POSITION DESCRIPTION ITSELF INCLUDES BOTH FULL PERFORMANCE LEVEL AND CAREER LADDER DUTIES THAT INVOLVE WEIGHING FUNCTIONS. FOR THIS REASON, WE ARE INCLINED TO GIVE GREATER WEIGHT TO THE SPECIFIC STATEMENT BY THE SUPERINTENDENT OF THE DENVER MINT THAT FOR AT LEAST THE PERIOD AFTER MAY 1974, THE EMPLOYEES WERE NOT IN A CAREER LADDER SITUATION, THAN TO THE MORE GENERAL STATEMENT BY THE DIRECTOR OF THE MINT CONCERNING THAT BUREAU'S CAREER LADDER PROGRAM.

THUS, MR. ATENCIO IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD FROM JUNE 1974 THROUGH FEBRUARY 1977, AND MR. EVANS IS SO ENTITLED FOR PERIODS FROM JUNE 1, 1974 THROUGH DECEMBER 1974, AND JANUARY 1976 THROUGH FEBRUARY 1977, LESS THE FIRST 120 DAYS OF EACH SUCH PERIOD. THE SETTLEMENTS ARE OVERRULED ACCORDINGLY.