B-197726.OM, OCT 7, 1980

B-197726.OM: Oct 7, 1980

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WHICH WERE CITED TO THE EFFECT THAT AN EMPLOYEE MUST PERFORM ALL OF THE DUTIES OF A HIGHER GRADE POSITION BEFORE HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION. WE DO NOT BELIEVE THAT FLEMING AND DEGRAW ARE APPLICABLE TO MR. SHEA WAS DETAILED TO A HIGHER GRADE POSITION. IN FLEMING AND DEGRAW BOTH CLAIMANTS WERE CONTENDING THAT THE PERFORMANCE OF MANY OF THE DUTIES OF A HIGHER GRADE CONSTITUTED A DETAIL. SHEA'S CASE IS NOT WHETHER HE WAS DETAILED TO A HIGHER GRADE POSITION BUT WHETHER HE IS ENTITLED TO A RETROACTIVE PROMOTION EVEN THOUGH SOME OF THE DUTIES OF THE POSITION TO WHICH HE WAS DETAILED HAD BEEN TRANSFERRED TO ANOTHER OFFICE. THE RECORD SHOWS THAT IN JULY 1972 THE TRAINING FUNCTION WAS SEPARATED FROM THE BLS PERSONNEL OFFICE AND SET UP AS A SEPARATE DIVISION.

B-197726.OM, OCT 7, 1980

SUBJECT: CLAIM OF JOSEPH L. SHEA - B-197726-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

IN LIGHT OF MR. SHEA'S LETTER OF MARCH 30, 1979, TO PEARLINE E. CARTER, WE CONSIDER HIS LETTER OF JANUARY 24, 1980, TO CONSTITUTE AN APPEAL OF ONLY THAT PORTION OF HIS CLAIM NOT BARRED BY 31 U.S.C. SEC. 71A.

SETTLEMENT CERTIFICATE Z-2819503, ISSUED JANUARY 14, 1980, DENIED MR. SHEA'S CLAIM ON THE BASIS OF WILLIAM L. DEGRAW B-194369, AUGUST 24, 1979, AND PATRICK J. FLEMING, B-191413, SEPTEMBER 19, 1978, WHICH WERE CITED TO THE EFFECT THAT AN EMPLOYEE MUST PERFORM ALL OF THE DUTIES OF A HIGHER GRADE POSITION BEFORE HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION. WE DO NOT BELIEVE THAT FLEMING AND DEGRAW ARE APPLICABLE TO MR. SHEA'S SITUATION FOR THE REASONS SET FORTH BELOW.

THE AGENCY DOES NOT DENY AND IN FACT STATES THAT MR. SHEA WAS DETAILED TO A HIGHER GRADE POSITION. IN FLEMING AND DEGRAW BOTH CLAIMANTS WERE CONTENDING THAT THE PERFORMANCE OF MANY OF THE DUTIES OF A HIGHER GRADE CONSTITUTED A DETAIL. THEREFORE, THE ISSUE IN MR. SHEA'S CASE IS NOT WHETHER HE WAS DETAILED TO A HIGHER GRADE POSITION BUT WHETHER HE IS ENTITLED TO A RETROACTIVE PROMOTION EVEN THOUGH SOME OF THE DUTIES OF THE POSITION TO WHICH HE WAS DETAILED HAD BEEN TRANSFERRED TO ANOTHER OFFICE. WE BELIEVE THAT IN THE CIRCUMSTANCES OF MR. SHEA'S CASE, A RETROACTIVE TEMPORARY PROMOTION MAY BE ALLOWED.

THE RECORD SHOWS THAT IN JULY 1972 THE TRAINING FUNCTION WAS SEPARATED FROM THE BLS PERSONNEL OFFICE AND SET UP AS A SEPARATE DIVISION. SEPTEMBER 21, 1972, A MERIT STAFFING SELECTION CERTIFICATE FOR THE GS-14, BRANCH CHIEF POSITION WAS ISSUED. HOWEVER, THE SUPERVISOR FOUND NO SUITABLE CANDIDATE AND DID NOT MAKE A SELECTION. IN JANUARY 1973 MR. SHEA WAS MADE ACTING CHIEF. SINCE BLS ATTEMPTED TO FILL THE POSITION AT THE GS -14 LEVEL AFTER THE TRAINING FUNCTION HAD BEEN TRANSFERRED, IT APPEARS THAT MR. SHEA PERFORMED THE SAME DUTIES THAT WOULD HAVE BEEN PERFORMED BY A PERSON APPOINTED TO THE POSITION. THIS CONCLUSION IS SUPPORTED BY THE PERSONNEL OFFICER'S MEMORANDUM OF OCTOBER 16, 1979, IN WHICH SHE STATED: "THE DUTIES NOT PERFORMED BY MR. SHEA WERE NOT ASSIGNED TO OR PERFORMED BY ANY OTHER EMPLOYEE."

ACCORDINGLY, THE SETTLEMENT CERTIFICATE SHOULD BE MODIFIED IN ORDER TO GRANT MR. SHEA A RETROACTIVE TEMPORARY PROMOTION IN ACCORDANCE WITH MARY LEE GROOVER, B-190174, APRIL 21, 1978, BEGINNING THE 121ST DAY AFTER MARCH 1, 1973, AND ENDING FEBRUARY 10, 1978, THE DATE THE GS-14 POSITION WAS CANCELLED. YOUR FILE Z-2819503 IS RETURNED FOR APPROPRIATE ACTION.