B-238304, Aug 27, 1990, 69 Comp.Gen. 689

B-238304: Aug 27, 1990

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

The claim is denied. Smith - Grade and Pay Retention: The issue in this case is whether Charley D. Should have been granted grade and pay retention as a result of his transfer from the Postal Service to the Air Force. As is explained below. We hold that he is not entitled to grade and pay retention. Smith's claim was denied by our Claims Group on the basis that his transfer to the Air Force was self-initiated with full advance knowledge that he would be paid a lower salary. The threshold question here is whether an employee who transfers from a position in the Postal Service is eligible for grade and pay retention. Are limited by the definitions in 5 U.S.C. The definition of "employee" for this purpose is stated in section 5102(a)(2) as "an individual employed in or under an agency.".

B-238304, Aug 27, 1990, 69 Comp.Gen. 689

CIVILIAN PERSONNEL - Compensation - Compensation retention - Eligibility A former Postal Service employee claims grade and pay retention as a result of his transfer to the Air Force. The grade and pay retention provisions in 5 U.S.C. Sec. 5362 and 5363 do not apply to an employee transferring from the Postal Service to a covered agency. Hence, the claim is denied.

Charley D. Smith - Grade and Pay Retention:

The issue in this case is whether Charley D. Smith, an employee of the Department of the Air Force, should have been granted grade and pay retention as a result of his transfer from the Postal Service to the Air Force. As is explained below, we hold that he is not entitled to grade and pay retention.

Mr. Smith resigned from the Postal Service, where he held the position of Distribution Clerk, grade PO5, at a salary rate of $11.48 per hour, to accept the Air Force position of Management Analyst, grade GS-5, at a salary of $9 per hour. The record indicates that Mr. Smith applied for and voluntarily accepted the lower paying position with the Air Force and that he signed a statement acknowledging that his salary would be at the grade GS-5, step 10 level which represented a reduction in pay from his salary at the Postal Service.

Mr. Smith's claim was denied by our Claims Group on the basis that his transfer to the Air Force was self-initiated with full advance knowledge that he would be paid a lower salary, and as such, it constituted a reduction in pay at his request for which grade and pay retention do not apply. /1/

Mr. Smith appeals the denial and contends that he did not voluntarily request a reduction in pay or grade. He claims that he signed the pre- employment acknowledgement that he would receive a reduction in pay without being aware of the possibility of retained grade and pay.

The threshold question here is whether an employee who transfers from a position in the Postal Service is eligible for grade and pay retention. Sections 5362 and 5363 of title 5, United States Code, which authorize retained grade and pay, are limited by the definitions in 5 U.S.C. Sec. 5361(1) and (2). The definition of "employee" for this purpose is stated in section 5102(a)(2) as "an individual employed in or under an agency." The term "agency" is defined in section 5102(a)(1), except for other specifically enumerated agencies, as "an Executive agency," which under 5 U.S.C. Sec. 105 includes an "independent establishment." However, the latter is defined at 5 U.S.C. Sec. 104 as follows:

"For the purpose of this title, independent establishment' means--

"(1an establishment in the executive branch (other than the United States Postal Service, or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment. ..."

Since the Postal Service is not an "agency" within the meaning of 5 U.S.C. Sec. 5102(a), it follows that an employee of the Postal Service who transfers to "an agency" is not covered by the provisions of 5 U.S.C. Secs. 5362 and 5363, and is not entitled to retained grade and pay thereunder. See James A. Schultz, 59 Comp.Gen. 28 (1979); and Postal Service Employees, 58 Comp.Gen. 132 (1978). See also the implementing regulations found at 5 C.F.R. Sec. 536.105. Section 536.105(a)(1) provides that grade and pay retention do not apply to an employee who moves from a position which is not in an agency as defined in 5 U.S.C. Sec. 5102. Thus, Mr. Smith is not eligible for retained grade or pay under 5 U.S.C. Secs. 5362 and 5363.

Accordingly, we sustain our Claims Group's denial of retained grade and pay in this case.

/1/ Settlement Certificate Z-2861908, November 30, 1989. EXTRA LINE

/1/ The agency concluded that visits to the Rockville facility by employees from the main building would be relatively rare, and the Rockville staff could provide personal escorts with minimal inconvenience and with no significant impact on resources or security needs.