B-198473, MAY 4, 1981

B-198473, MAY 4, 1981

DIGEST: ARMY EMPLOYEE, DOWNGRADED FROM GS-13 TO GS-12 FOLLOWING RELOCATION AND RECLASSIFICATION OF POSITION, CONTENDS HE CONTINUED TO PERFORM DUTIES OF GS-13 POSITION FOR 18 MONTHS. EMPLOYEE DID NOT FILE TIMELY CLASSIFICATION APPEAL BUT NOW REQUESTS RETROACTIVE RESTORATION OF POSITION TO ORIGINAL LOCATION AND CLASSIFICATION, CORRECTION OF RECORDS, AND BACK PAY. CLAIM DENIED. CLASSIFICATION ACTIONS MAY NOT BE RETROACTIVE EXCEPT IN TIMELY, SUCCESSFUL APPEALS OF DOWNGRADINGS. AGENCY CLASSIFICATION ACTIONS ARE BASIS FOR PAY AND PERSONNEL TRANSACTIONS UNTIL CHANGED BY CSC/OPM. GENERAL RULE IS THAT EMPLOYEE IS ENTITLED ONLY TO PAY OF POSITION TO WHICH OFFICIALLY ASSIGNED AND BACK PAY MAY NOT BE GRANTED FOR PERIODS OF ALLEGED WRONGFUL CLASSIFICATION.

JOSEPH J. ZARBA - RETROACTIVE RECLASSIFICATION - BACK PAY:

MR. JOSEPH J. ZARBA, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AT THE ROCKY MOUNTAIN ARSENAL, HAS APPEALED OUR CLAIMS DIVISION'S DENIAL OF HIS CLAIM FOR THE RETROACTIVE RECLASSIFICATION OF HIS POSITION AND BACK PAY. FOR THE REASONS EXPLAINED HEREINAFTER THE DENIAL OF HIS CLAIM MUST BE SUSTAINED.

WHILE THE RECORD IS NOT ENTIRELY CLEAR IT APPEARS THAT ON JUNE 10, 1977, MR. ZARBA WAS DOWNGRADED FROM GS-13 TO GS-12 AS A RESULT OF HIS POSITION - FINANCIAL MANAGER GS-505-13 (ORGANIZATIONAL TITLE COMPTROLLER) WHICH REPORTED DIRECTLY TO THE INSTALLATION COMMANDER - BEING PLACED UNDER THE SUPERVISION OF THE DIRECTOR OF ADMINISTRATION AND RECLASSIFIED AS BUDGET AND ACCOUNTING OFFICER GS-504-12. ON AUGUST 26, 1977, MR. ZARBA FILED A COMPLAINT OR GRIEVANCE WITH THE INSPECTOR GENERAL SERVING HIS INSTALLATION CONTENDING THAT ARMY REGULATIONS AND DIRECTIVES REQUIRED A SEPARATE COMPTROLLER'S ORGANIZATION AND PROTESTING HIS DOWNGRADING. ON OCTOBER 20, 1977 THE INSPECTOR GENERAL REPLIED THAT A SEPARATE COMPTROLLER'S ORGANIZATION WOULD BE REESTABLISHED, THAT THE COMPTROLLER'S POSITION WOULD BE REESTABLISHED IN OCCUPATIONAL SERIES CODE 505 - THE FINANCIAL MANAGEMENT SERIES - BUT THAT THE GRADE TENTATIVELY AUTHORIZED WAS GS-12. THE INSPECTOR GENERAL SUGGESTED THAT MR. ZARBA PURSUE THE GRADE QUESTION THROUGH CIVILIAN PERSONNEL CHANNELS.

SOMETIME THEREAFTER, MR. ZARBA'S POSITION WAS AGAIN RECLASSIFIED, THIS TIME TO FINANCIAL MANAGER GS-505-12 (COMPTROLLER) - A GRADE LOWER THAN HIS ORIGINAL POSITION - AND HE WAS OFFICIALLY REASSIGNED ON DECEMBER 10, 1978, 18 MONTHS AFTER HE WAS DOWNGRADED. IN THE INTERIM, HE HAD BEEN DETAILED TO AN "UNESTABLISHED POSITION" CONSISTING OF FINANCIAL MANAGEMENT DUTIES - OFFICIALLY FOR 120 DAYS FROM APRIL 8, 1978 TO AUGUST 8, 1978, AND, HE SAYS, UNOFFICIALLY UNTIL DECEMBER 10, 1978.

MR. ZARBA ASSERTS THAT HE CONTINUED TO PERFORM THE DUTIES OF THE FINANCIAL MANAGER POSITION GS-505-13 (COMPTROLLER) FOR 18 MONTHS AFTER HE WAS DOWNGRADED - FROM JUNE 10, 1977 TO DECEMBER 10, 1978. THE INSTALLATION COMMANDER SUPPORTS THIS ASSERTION FROM THE TIME HE ASSUMED COMMAND JANUARY 31, 1978. MR. ZARBA REQUESTS RETROACTIVE RESTORATION OF HIS POSITION TO ITS ORIGINAL LOCATION AND CLASSIFICATION, CORRECTION OF RECORDS AND BACK PAY.

THE CIVILIAN PERSONNEL OFFICE SERVING MR. ZARBA'S INSTALLATION DENIED HIS CLAIM ON THE GROUNDS THAT THE ORIGINAL RECLASSIFICATION AND DOWNGRADING OF HIS POSITION WAS PROPER AND THAT THERE WAS NO AUTHORITY FOR THE RETROACTIVE RECLASSIFICATION HE REQUESTED. OUR CLAIMS DIVISION, WHILE RECOGNIZING THE CLASSIFICATION ISSUES AND AGREEING WITH THE AGENCY'S DETERMINATION, BASED ITS DENIAL OF THE CLAIM PRIMARILY ON OUR TURNER- CALDWELL DECISIONS RELATING TO EXTENDED DETAILS. MR. ZARBA APPEALED ON THE GROUNDS THAT THE CLAIMS DIVISION MISUNDERSTOOD THE BASIS FOR HIS CLAIM AND THAT IT WAS NOT PREDICATED ON A DETAIL.

ESSENTIALLY WHAT MR. ZARBA IS CONTENDING IS THAT DURING THE 18 MONTHS PERIOD IN QUESTION HIS POSITION WAS INCORRECTLY CLASSIFIED AS TO TITLE AND SERIES AS WELL AS GRADE. HE WANTS THE SITUATION CORRECTED RETROACTIVELY SO AS TO ENTITLE HIM TO THE PAY, EXPERIENCE CREDIT, AND ANY OTHER BENEFITS WHICH MIGHT FLOW FROM HIS HAVING OCCUPIED THE GS-505 13 POSITION FOR THE PERIOD IN QUESTION. HOWEVER, EVEN IF MR. ZARBA'S CONTENTION THAT HIS POSITION WAS MISCLASSIFIED IS CORRECT (WHICH, AS HAS BEEN INDICATED, HIS PERSONNEL OFFICE DISPUTES) THE GOVERNING LAWS AND IMPLEMENTING REGULATIONS DO NOT PERMIT THE RETROACTIVE RELIEF HE SEEKS.

THE AUTHORITY TO CLASSIFY GENERAL SCHEDULE POSITIONS IS VESTED BY LAW, NOT IN THE GENERAL ACCOUNTING OFFICE, BUT IN THE AGENCIES WHERE THE POSITIONS ARE LOCATED AND THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT). SEE SECTIONS 5107, 5110, 5112, AND 5115 OF TITLE 5, U.S.C. AND THE IMPLEMENTING REGULATIONS IN PART 511 OF TITLE 5, CODE OF FEDERAL REGULATIONS. UNDER THESE LAWS AND REGULATIONS, AN AGENCY IS REQUIRED TO INITIALLY CLASSIFY POSITIONS UNDER ITS JURISDICTION AND TO CHANGE THE CLASSIFICATION WHEN CIRCUMSTANCES WARRANT. THESE ACTIONS BY AN AGENCY ARE THE BASIS FOR PAY AND PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE ISSUED BY CSC/OPM. 5 U.S.C. SEC. 5107.

THUS, WHEN MR. ZARBA WAS PLACED IN THE BUDGET AND ACCOUNTING OFFICE GS- 504-12 POSITION, THE CLASSIFICATION OF THAT POSITION, UNTIL CHANGED, GOVERNED HIS ENTITLEMENT TO PAY AND OTHER BENEFITS EVEN THOUGH HE MAY HAVE PERFORMED DUTIES OTHER THAN THOSE DESCRIBED FOR THAT POSITION. THIS GENERAL RULE WAS RECENTLY REITERATED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), WHEREIN AT PAGE 406 IT IS STATED: "... THE FEDERAL EMPLOYEE IS ENTITLED TO RECEIVE ONLY THE SALARY OF THE POSITION TO WHICH HE WAS APPOINTED, EVEN THOUGH HE MAY HAVE PERFORMED THE DUTIES OF ANOTHER POSITION OR CLAIMS THAT HE SHOULD HAVE BEEN PLACED IN A HIGHER GRADE." IN THIS CASE, IN WHICH THE RESPONDENTS UNSUCCESSFULLY SOUGHT RETROACTIVE RECLASSIFICATION OF THEIR POSITIONS AND BACK PAY, THE COURT FURTHER HELD AT PAGE 407 THAT THERE IS NO ENTITLEMENT TO BACK PAY FOR A PERIOD OF CLAIMED WRONGFULLY CLASSIFICATION. ADDITION CSC/OPM REGULATIONS AND DECISIONS OF THIS OFFICE SPECIFICALLY PROHIBIT RETROACTIVE CLASSIFICATION ACTIONS EXCEPT IN THE CASE OF A TIMELY, SUCCESSFUL APPEAL OF A DOWNGRADING OR OTHER CLASSIFICATION ACTION RESULTING IN A REDUCTION IN PAY. SEE 5 C.F.R. 511.701-511.703, 55 COMP.GEN. 515 (1975), AND CAESAR A. LANGSTON, B-196626, JANUARY 27, 1981.

ACCORDINGLY, MR. ZARBA'S CLAIM MAY NOT BE GRANTED ON THE THEORY THAT HIS POSITION WAS MISCLASSIFIED. HE SHOULD HAVE PURSUED A REMEDY THROUGH A TIMELY CLASSIFICATION APPEAL THROUGH HIS AGENCY OR DIRECTLY TO CSC/OPM. U.S.C. 5112(B), 5 C.F.R. 511.603, 511.604, 511.702, 511.703. AS HAS BEEN INDICATED, HE WAS ADVISED BY THE INSPECTOR GENERAL TO PURSUE QUESTIONS CONCERNING THE GRADE OF HIS POSITION THROUGH CIVILIAN PERSONNEL CHANNELS.

WHILE MR. ZARBA DID NOT BASE HIS CASE ON IT, THERE IS ONE OTHER THEORY UNDER WHICH HIS CLAIM COULD BE CONSIDERED, THAT ENUNICATED IN TURNER- CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED 56 COMP.GEN. 427 (1977). THIS DECISION HOLDS THAT IF AN EMPLOYEE IS DETAILED TO A POSITION CLASSIFIED IN A HIGHER GRADE FOR A PERIOD IN EXCESS OF 120 DAYS WITHOUT CSC APPROVAL, HE OR SHE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR SUCH PERIOD, PROVIDED THE EMPLOYEE WOULD HAVE MET ALL QUALIFICATIONS AND OTHER REQUIREMENTS FOR SUCH A PROMOTION. HOWEVER, THERE IS NO EVIDENCE THAT THERE WAS IN EXISTENCE DURING THE PERIOD IN QUESTION AN ESTABLISHED POSITION CLASSIFIED IN A HIGHER GRADE TO WHICH MR. ZARBA CAN CLAIM TO HAVE BEEN OFFICIALLY OR UNOFFICIALLY DETAILED. THEREFORE, HE DOES NOT QUALIFY FOR RELIEF UNDER TURNER-CALDWELL.

IN VIEW OF THE FOREGOING, THE DENIAL OF MR. ZARBA'S CLAIM MUST BE SUSTAINED.