B-232695, Dec 15, 1989, 69 Comp.Gen. 140

B-232695: Dec 15, 1989

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A federal employee is entitled only to the salary of his/her appointed position even though higher level duties were performed. Collective bargaining agreement provision that provided higher pay where an employee is detailed to a higher-graded position for more than 30 days is not applicable. Since there was no detail but merely an accretion or misassignment of some higher-graded duties. The employees are not entitled to backpay for performing the higher-graded duties. Dabney - Backpay - Higher Grade Duty Assignment: This action is in response to a request from the Defense Logistics Agency for an advance decision on the propriety of paying the backpay claims of Ms. The claims are denied. Dabney were assigned as Freight Rate Assistants.

B-232695, Dec 15, 1989, 69 Comp.Gen. 140

Where employees performed duties of a position classified at a higher grade than the position they occupied, no right to increased pay exists. A federal employee is entitled only to the salary of his/her appointed position even though higher level duties were performed. Moreover, collective bargaining agreement provision that provided higher pay where an employee is detailed to a higher-graded position for more than 30 days is not applicable, since there was no detail but merely an accretion or misassignment of some higher-graded duties. Therefore, the employees are not entitled to backpay for performing the higher-graded duties.

Cassandra G. McPeak and Wayne E. Dabney - Backpay - Higher Grade Duty Assignment:

This action is in response to a request from the Defense Logistics Agency for an advance decision on the propriety of paying the backpay claims of Ms. Cassandra G. McPeak and Mr. Wayne E. Dabney based on their performance of the duties of a higher-graded position. For the reasons stated below, the claims are denied.

BACKGROUND

Ms. McPeak and Mr. Dabney were assigned as Freight Rate Assistants, grade GS-6, during the period March 1, 1984, through June 13, 1987, at the Defense General Supply Center, Richmond, Virginia, where they worked in conjunction with Freight Rate Specialists, whose positions were graded at GS-7. The agency states that both Ms. McPeak and Mr. Dabney also performed duties of Freight Rate Specialists, GS-7. After a classification review, management elected not to upgrade the positions occupied by the claimants and stated that the claimants would only perform the duties of the grade GS-6 positions to which they had been assigned. The claimants filed a formal grievance dated May 27, 1987, alleging that they were still performing grade GS-7 work. As a result of this grievance, the agency acknowledged that the employees were in fact still performing duties at the grade GS-7 level, and issued a determination that effective June 15, 1987, Ms. McPeak and Mr. Dabney would only perform duties consistent with the GS-6 level of responsibility. The two employees claim backpay for the entire period of March 1, 1984, to June 12, 1987. The agency denied the claim, but asks whether it can grant both individuals backpay covering the period October 1, 1986, to June 12, 1987, since they were performing GS-7 level responsibilities during that period.

OPINION

The general rule is that an employee is entitled only to the salary of the position to which he is actually appointed, regardless of the duties performed. When an employee performs the duties of a higher grade level, no entitlement to the salary of the higher grade exists until such time as the individual is actually promoted. This rule was reaffirmed by the United States Supreme Court in United States v. Testan, 424 U.S. 392, at 406 (1976), where the Court stated that "... 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 claim that he should have been placed in a higher grade." See also Wilson v. United States, 229 Ct.Cl. 510 (1981). Consequently, backpay is not available as a remedy for misassignments to higher level duties or improper classifications. Regina Taylor, B-192366, Oct. 4, 1978.

We have recognized an exception to this general rule where the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher grade positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay. See Beachley and Davis, 61 Comp.Gen. 403 (1982), and Albert W. Lurz, 61 Comp.Gen. 492 (1982). In the present case the agency is a party to a collective bargaining agreement which provides that when an employee is to be detailed to a higher-graded position for more than 30 days, he or she shall be temporarily promoted. The agency asks whether this provision is sufficient authority to pay the employees backpay.

In this case there is no evidence of a detail of the employees to the higher-graded position. Instead, it appears that over a period of several years they either assumed or were assigned some duties which were associated with the higher-graded position. Thus, it appears that the situation here was one of misassignment or accretion of some higher graded duties, not a detail to the higher-graded position.

Accordingly, since the claimants in this case were misassigned to perform some higher level duties, but were not detailed to a higher graded position, there is no authority to award retroactive temporary promotions and backpay.