B-237729, Jul 20, 1990

B-237729, Jul 20, 1990

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Overtime - Amount determination DIGEST: An employee, who was improperly reassigned to a different office for a 4- month period, claims backpay for overtime he would have worked. The agency should award overtime based on what his co-workers worked or what the employee worked in the past.

Arthur G. Budd - Overtime Computations in Backpay Award:

The issue in this decision is whether an agency correctly determined the amount of overtime hours to be included in a claim under the Back Pay Act. /1/ The employee, Mr. Arthur G. Budd, was found to have been improperly reassigned to another office between December 18, 1983, and April 19, 1984, and that but for this action he would have been available to work overtime as required in his prior assignment.

The agency determined that Mr. Budd was entitled to 67 hours of overtime in his backpay award. It first determined the number of overtime hours worked by the employee who replaced Mr. Budd during the period of his reassignment. That figure 158 hours was then reduced by any overtime hours worked on days Mr. Budd was on leave, any overtime hours worked on Saturdays and/or Sundays when Mr. Budd was on leave the preceding Friday, and by any overtime hours Mr. Budd worked while on his reassignment.

Mr. Budd, through his attorney, Mr. Charles Smith, claims 210 hours of overtime, based on the number of hours worked by similarly situated employees and the fact that Mr. Budd has a record of volunteering for as many hours of overtime as available. Mr. Budd contests the use of comparison with the employee who took his place because he contends that employee did not work as many hours of overtime as available and because he did not have the same qualifications as Mr. Budd.

Under the provisions of the Back Pay Act, 5 U.S.C. Sec. 5596(b)(1)(A)(i), an employee who has undergone an unjustified or unwarranted personnel action is entitled to receive, for the period for which the personnel action was in effect, an amount equal to all or any part of the pay the employee normally would have earned had the personnel action not occurred, less any amounts earned by the employee through other employment during that period.

Our decisions have held that the pay an employee "normally" would have received includes an estimate for the overtime work the employee would have performed but for the unjustified, unwarranted personnel action. However, we have also held that there is no specific formula to determine the number of overtime hours which is appropriate in all situations. have held that the term "normally" suggests at least an administrative finding in each case that the facts support a reasonable probability that the employee would have performed duty for which compensation is payable. Kenneth L. Clark, 62 Comp.Gen. 370 (1983).

In cases where the unjustified and unwarranted personnel action is other than the denial of overtime, we have agreed with agency determinations to base the backpay calculation on the average number of hours of overtime worked by similarly situated employees or on an employee's prior overtime experience. See Ronald J. Ranieri, B-207997.2, Aug. 23, 1983, and cases cited therein. The method to be used in a particular case is the one which is most likely to place the employee in the situation he would have been but for the unjustified and unwarranted action.

In the present case, there is a question whether Mr. Budd's replacement should be considered similarly situated to Mr. Budd in light of allegedly lesser qualifications and a different record for the use of overtime. addition, we do not agree with the agency determination to reduce the backpay computation by comparing Mr. Budd's schedule and leave usage in a job to which he was improperly assigned with the overtime performed by his replacement. We believe it is unfair to reduce the computation based on the days Mr. Budd took leave because the use of leave could be reasonably related to the unwarranted and unjustified reassignment. Consistent with the decisions cited above, we hold that the Army should recalculate Mr. Budd's backpay based on the average number of hours of overtime worked by similarly situated employees or on Mr. Budd's prior overtime experience without reducing the computation based on Mr. Budd's schedule in his improper assignment.

/1/ This decision was requested by Colonel Garry D. Foster, Executive, Finance Corps, Office of the Director of Finance and Accounting, Department of the Army.