B-199843, APR 29, 1981

B-199843: Apr 29, 1981

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EMPLOYEE ALLEGES THAT DELAY IN PROMOTION IS ARBITRARY AND CAPRICIOUS. THE GRANTING OF PROMOTIONS IS A DISCRETIONARY MATTER PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED. WE HAVE MADE EXCEPTIONS TO THIS RULE WHERE THROUGH ADMINISTRATIVE OR CLERCIAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED. WHERE NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES HAVE NOT BEEN CARRIED OUT. BROWN WAS EMPLOYED AS A GS-9 FIELD REPRESENTATIVE WITH THE OFFICE OF ECONOMIC OPPORTUNITY (OEO). WHICH WAS RETURNED TO MR. A NEW PERFORMANCE EVALUATION RATING WAS PREPARED AND SIGNED BY MR. WAS APPROVED. BROWN WAS QUALIFIED FOR PROMOTION ON JUNE 28. SMITH WAS IN A BETTER POSITION THAN MR.

B-199843, APR 29, 1981

DIGEST: EMPLOYEE APPEALS CLAIMS DIVISION SETTLEMENT DENYING REQUEST THAT HIS PROMOTION TO GS-11 EFFECTIVE OCTOBER 4, 1970, BE MADE RETROACTIVE TO JUNE 28, 1970. EMPLOYEE ALLEGES THAT DELAY IN PROMOTION IS ARBITRARY AND CAPRICIOUS. THE GRANTING OF PROMOTIONS IS A DISCRETIONARY MATTER PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED. SALARY INCREASES MAY NOT BE MADE RETROACTIVE ABSENT STATUTORY AUTHORITY. WE HAVE MADE EXCEPTIONS TO THIS RULE WHERE THROUGH ADMINISTRATIVE OR CLERCIAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, WHERE NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES HAVE NOT BEEN CARRIED OUT, WHERE AN ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR WHERE THE AGENCY HAS THROUGH A COLLECTIVE BARGAINING AGREEMENT VESTED IN THE EMPLOYEE THE RIGHT TO BE PROMOTED AFTER A SPECIFIED PERIOD. EMPLOYEE MAY NOT BE RETROACTIVELY PROMOTED SINCE HE HAS NOT ESTABLISHED THAT HIS SITUATION FALLS WITHIN ONE OF THE EXCEPTIONS TO GENERAL RULE AGAINST RETROACTIVE PROMOTIONS.

LAWRENCE BROWN, JR. - RETROACTIVE PROMOTION:

MR. LAWRENCE BROWN, JR., APPEALS THE CLAIMS DIVISION SETTLEMENT Z 2609884, FEBRUARY 27, 1978, DENYING HIS REQUEST THAT HIS PROMOTION FROM GS -9 TO GS-11, EFFECTIVE OCTOBER 4, 1970, BE MADE RETROACTIVE TO JUNE 28, 1970. FOR THE REASONS THAT FOLLOW, WE SUSTAIN THE SETTLEMENT OF THE CLAIMS DIVISION.

IN EARLY 1970, MR. BROWN WAS EMPLOYED AS A GS-9 FIELD REPRESENTATIVE WITH THE OFFICE OF ECONOMIC OPPORTUNITY (OEO), AUSTIN, TEXAS. MR. BROWN'S SUPERVISOR, PAUL J. SMITH, SUBMITTED A REQUEST FOR PROMOTION RECOMMENDING THAT MR. BROWN BE PROMOTED TO GS-11, EFFECTIVE JUNE 28, 1970. BY LETTER DATED JULY 17, 1970, MR. SMITH ADVISED MR. BROWN THAT HIS PROMOTION REQUEST HAD BEEN QUESTIONED BY MR. WOODS, CHIEF, RURAL FIELD OPERATIONS DIVISION, ON THE BASIS OF NEGATIVE COMMENTS CONTAINED IN AN OEO FORM ENTITLED "SUPERVISORY EVALUATION FOR PROMOTION." THIS FORM HAD BEEN PREPARED BY MR. SMITH AND REFERRED TO CERTAIN AREAS OF MR. BROWN'S PERFORMANCE THAT NEEDED IMPROVEMENT. THE FILE SHOWS THAT MR. SMITH CONCURRED WITH MR. WOODS' DENIAL OF MR. BROWN'S PROMOTION. FURTHERMORE, MR. SMITH ADVISED MR. BROWN THAT HE WOULD OBSERVE HIS PERFORMANCE DURING THE NEXT FEW MONTHS AND UPON IMPROVEMENT, WOULD AGAIN RECOMMEND HIM FOR PROMOTION.

AGAIN BY LETTER DATED JULY 31, 1970, MR. SMITH ADVISED MR. BROWN OF THE REASONS FOR THE DENIAL OF HIS PROMOTION. MR. SMITH WROTE THAT:

"AT THIS TIME I CANNOT GIVE FAVORABLE ANSWERS TO THE QUESTIONS RAISED BY MR. WOODS."

ON AUGUST 7, 1970, MR. BROWN APPEALED THE DENIAL OF HIS PROMOTION TO HIS REGIONAL DIRECTOR, WHICH WAS RETURNED TO MR. WOODS FOR HIS ACTION AND SUBSEQUENTLY DENIED BY HIM ON AUGUST 21, 1970. ON SEPTEMBER 10, 1970, MR. BROWN AGAIN APPEALED THE DENIAL TO THE REGIONAL DIRECTOR. ON SEPTEMBER 29, 1970, A THREE-MAN PANEL HEARD MR. BROWN'S APPEAL. MEANWHILE, ON SEPTEMBER 30, 1970, A NEW PERFORMANCE EVALUATION RATING WAS PREPARED AND SIGNED BY MR. WOODS. IN ADDITION, A SF-50 PROMOTING MR. BROWN FROM GS-9, STEP 2, TO GS-11, STEP 1, EFFECTIVE OCTOBER 4, 1970, WAS APPROVED.

ON OCTOBER 27, 1970, THE THREE-MAN PANEL SUBMITTED THEIR FINDINGS TO THE PERSONNEL OFFICE. THE PANEL FOUND THAT MR. BROWN WAS QUALIFIED FOR PROMOTION ON JUNE 28, 1970. THE PANEL RECOMMENDED THAT MR. BROWN BE PROMOTED PURSUANT TO THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596 (1976), RETROACTIVE TO JULY 27, 1970, THE DATE OF HIS APPEAL TO THE AGENCY. THE PANEL FOUND THAT MR. SMITH WAS IN A BETTER POSITION THAN MR. WOODS TO EVALUATE THE QUALITY OF MR. BROWN'S WORK.

APPARENTLY, THE PANEL'S RECOMMENDATION WAS NOT ADOPTED BY THE AGENCY. MR. BROWN SUBMITTED THE MATTER TO OUR CLAIMS DIVISION. THE CLAIMS DIVISION ISSUED A SETTLEMENT ON FEBRUARY 27, 1978, THAT DENIED MR. BROWN'S CLAIM ON THE BASIS THAT HE HAD NO VESTED RIGHT TO A PROMOTION EFFECTIVE JUNE 28, 1970. HE NOW APPEALS ON THE BASIS THAT THE DELAY IN HIS PROMOTION WAS ARBITRARY AND CAPRICIOUS.

IT IS A WELL SETTLED RULE THAT THE GRANTING OF PROMOTIONS FROM GRADE TO GRADE IS A DISCRETIONARY MATTER PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED. TIERNEY V. UNITED STATES, 168 CT.CL. 77 (1964); WIENBERG V. UNITED STATES, 192 CT.CL. 24 (1970).

MOREOVER, AN ADMINISTRATION CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY. THIS OFFICE HAS PERMITTED RETROACTIVE PROMOTIONS IN CASES WHERE THROUGH AN ADMINISTRATIVE OR CLERICAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, WHERE AN AGENCY HAS FAILED TO CARRY OUT NONDISCRETIONARY REGULATIONS OR POLICIES, WHERE AN ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR WHERE THE AGENCY HAS THROUGH A COLLECTIVE BARGAINING AGREEMENT VESTED IN THE EMPLOYEE THE RIGHT TO BE PROMOTED AFTER A SPECIFIED PERIOD OF TIME. RUTH WILSON, 55 COMP.GEN. 836 (1976): WILLIAM SCOTT, B-182565, MAY 29, 1975.

IT IS CLEAR IN THIS CASE THAT THERE EXISTS NONE OF THE ABOVE EXCEPTIONS TO THE GENERAL RULE AGAINST RETROACTIVE PROMOTIONS. INDEED, THE APPEAL DOES NOT EVEN PRESENT AN ARGUMENT THAT THE FACTS OF THIS CASE FALL WITHIN ONE OF THESE EXCEPTIONS. INSTEAD, IT APPEARS THAT THE DECISION NOT TO PROMOTE MR. BROWN WAS MADE BY HIS IMMEDIATE SUPERVISOR, MR. SMITH, IN CONJUNCTION WITH MR. SMITH'S SUPERVISOR, MR. WOODS. THE RECORD CLEARLY INDICATES THAT BOTH SUPERVISORS WERE IN AGREEMENT CONCERNING THE DEFICIENCIES IN MR. BROWN'S PERFORMANCE AND THE NEED FOR IMPROVEMENT PRIOR TO FURTHER CONSIDERATION FOR PROMOTION. THIS IS EXACTLY THE TYPE OF CONSIDERATIONS SUPERVISORS MUST MAKE CONCERNING ANY DISCRETIONARY PROMOTION.

THUS, SINCE THIS CASE DOES NOT FALL WITHIN ANY OF THE EXCEPTIONS TO A RETROACTIVE PROMOTION, MR. BROWN'S REQUEST IS DENIED.