B-196983, APR 7, 1980

B-196983, APR 7, 1980

DIGEST: A GS-12 EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE APPEALS DISALLOWANCE BY CLAIMS DIVISION OF HIS REQUEST FOR BACK PAY AT GS-13 LEVEL. DENIAL IS SUSTAINED AS RECORD SHOWS THAT EMPLOYEE PERFORMED ONLY THE DUTIES OF THE GS-12 POSITION TO WHICH HE WAS APPOINTED. WHILE POSITION WAS FORMERLY CLASSIFIED AT GS-13, AND ALTHOUGH EMPLOYEE WAS SUBSEQUENTLY PROMOTED TO GS -13 BASED ON DESK AUDIT AND CLASSIFICATION APPEAL, HE IS NOT ENTITLED TO BACK PAY FOR INTERIM PERIOD THAT POSITION WAS CLASSIFIED AT GS-12.

BENTON E. JONES - RETROACTIVE TEMPORARY PROMOTION:

BY A LETTER DATED NOVEMBER 8, 1979, MR. BENTON E. JONES APPEALED CERTIFICATE OF SETTLEMENT NO. Z-2816448, ISSUED SEPTEMBER 20, 1979, WHICH DISALLOWED HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION. INASMUCH AS THE RECORD DOES NOT ESTABLISH THAT MR. JONES WAS DETAILED TO A POSITION CLASSIFIED AT A HIGHER GRADE, THAT DISALLOWANCE IS SUSTAINED.

THE RECORD SHOWS THAT MR. JONES, AN EMPLOYEE OF THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE, WAS PROMOTED ON MAY 12, 1974, TO GRADE GS-12 UNDER POSITION DESCRIPTION NC 762. ON NOVEMBER 9, 1975, HE WAS REASSIGNED TO POSITION NC-781 AT THE SAME GRADE. BASED ON A DESK AUDIT OF HIS POSITION, CONDUCTED AT HIS REQUEST, MR. JONES WAS PROMOTED ON SEPTEMBER 24, 1978, TO GRADE GS-13, UNDER POSITION NC-823. IN LETTERS DATED MARCH 20 AND APRIL 30, 1979, HE REQUESTED BACK PAY FROM MAY 12, 1974, UNTIL HIS PROMOTION ON SEPTEMBER 24, 1978. THIS REQUEST WAS BASED ON THE FACT THAT THE GS-12 POSITION TO WHICH HE WAS APPOINTED ON MAY 12, 1974, PREVIOUSLY WAS CLASSIFIED AND OCCUPIED AT GRADE GS-13. HIS REQUEST WAS ADMINISTRATIVELY DENIED ON APRIL 12 AND JULY 3, 1979. MR. JONES APPEALED THE DECISION OF HIS AGENCY TO OUR CLAIMS DIVISION BY A LETTER OF AUGUST 3, 1979, WHICH RESULTED IN CERTIFICATE OF SETTLEMENT NO. Z-2816448.

IN HIS APPEAL FROM THE CERTIFICATE OF SETTLEMENT, MR. JONES ALLEGES THAT HE PERFORMED THE DUTIES OF A GS-13 POSITION FROM MAY 12, 1974, UNTIL SEPTEMBER 24, 1978. HE STATES THAT HE PERFORMED THESE DUTIES AS A DETAIL. TO SUBSTANTIATE HIS CLAIM THAT HE WAS DETAILED TO A HIGHER GRADE POSITION, HE REFERS TO A NOTICE OF PERSONNEL ACTION DATED APRIL 4, 1974.

IT IS WELL ESTABLISHED THAT AN EMPLOYEE OF THE FEDERAL GOVERNMENT IS ONLY ENTITLED TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED, REGARDLESS OF THE DUTIES HE ACTUALLY PERFORMS. 52 COMP.GEN. 920 (1973). WHILE WE HAVE HELD IN OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), AND 56 COMP.GEN. 427 (1977), THAT AN EMPLOYEE WHO IS DETAILED TO AN ESTABLISHED POSITION FOR MORE THAN 120 DAYS WITHOUT CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) PERMISSION IS ENTITLED TO A RETROACTIVE PROMOTION BEGINNING ON THE 121ST DAY OF THE DETAIL, THERE IS NO EVIDENCE THAT MR. JONES WAS DETAILED TO A HIGHER GRADE POSITION. THE NOTICE OF PERSONNEL ACTION RELIED UPON BY MR. JONES AS EVIDENCE OF A DETAIL INDICATES IN THE "REMARKS" SECTION THAT THE POSITION TO WHICH HE WAS BEING PROMOTED - FORMERLY ESTABLISHED AT GRADE GS-13 - WAS BEING FILLED AT THE GS-12 LEVEL. THE POSITION WAS THEN ESTABLISHED AT GRADE GS- 12 UNDER JOB DESCRIPTION NC-762, AND MR. JONES WAS APPOINTED TO IT ON MAY 12, 1974.

THEREFORE, THERE WAS NO HIGHER GRADE POSITION TO WHICH MR. JONES COULD HAVE BEEN DETAILED DURING THE TIME OF HIS CLAIM. ALTHOUGH HE WAS PERMANENTLY PROMOTED TO GRADE GS-13 IN 1978 AFTER HAVING REQUESTED A DESK AUDIT AND APPEALING HIS CLASSIFICATION TO THE CIVIL SERVICE COMMISSION, THE SUPREME COURT IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), HELD THAT NEITHER THE CLASSIFICATION ACT, 5 U.S.C. 5101-5115, NOR THE BACK PAY ACT, 5 U.S.C. 5596, CREATES A SUBSTANTIVE RIGHT TO BACK PAY DURING A PERIOD OF WRONGFUL CLASSIFICATION.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION ON SEPTEMBER 20, 1979, DISALLOWING MR. JONES' CLAIM FOR BACK PAY IS SUSTAINED.