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B-206423 L/M, MAR 15, 1982

B-206423 L/M Mar 15, 1982
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DIGEST: RECLASSIFICATION OF POSITION TO A HIGHER GRADE BECAUSE EMPLOYEE IS PERFORMING DUTIES OF A HIGHER GRADE DOES NOT ENTITLE EMPLOYEE TO INCREASED PAY UNTIL EMPLOYEE IS PROMOTED TO RECLASSIFIED POSITION. UNITED STATES HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR LETTER OF FEBRUARY 4. SHE WAS EMPLOYED WITH THE DEPARTMENT OF THE ARMY 311TH SUPPORT BRIGADE. THE 311TH SUPPORT BRIGADE WAS REORGANIZED INTO THE 311TH SUPPORT COMMAND AND ADDITIONAL DUTIES WERE GIVEN MS. HER POSITION WAS REEVALUATED AND ULTIMATELY DETERMINED TO BE THAT OF A SECRETARY-STENOGRAPHER. IT WAS NOT UNTIL JANUARY 1981 THAT HER POSITION WAS UPGRADED AND NOT UNTIL MARCH 8. THAT SHE WAS PROMOTED TO THE RECLASSIFIED POSITION.

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B-206423 L/M, MAR 15, 1982

DIGEST: RECLASSIFICATION OF POSITION TO A HIGHER GRADE BECAUSE EMPLOYEE IS PERFORMING DUTIES OF A HIGHER GRADE DOES NOT ENTITLE EMPLOYEE TO INCREASED PAY UNTIL EMPLOYEE IS PROMOTED TO RECLASSIFIED POSITION. SEE 57 COMP.GEN. 404 (1978).

ANTHONY C. BEILENSON, UNITED STATES HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER OF FEBRUARY 4, 1982, ASKING US TO RESPOND TO THE CONCERNS RAISED BY MS. ANN LININGER IN HER LETTER OF NOVEMBER 24, 1981, THAT YOU ENCLOSED.

ACCORDING TO MS. LININGER'S LETTER AND THE MATERIALS SHE ATTACHED TO IT, SHE WAS EMPLOYED WITH THE DEPARTMENT OF THE ARMY 311TH SUPPORT BRIGADE, AS A CLERK-STENOGRAPHER, GRADE GS-312-04. THE 311TH SUPPORT BRIGADE WAS REORGANIZED INTO THE 311TH SUPPORT COMMAND AND ADDITIONAL DUTIES WERE GIVEN MS. LININGER APPARENTLY ON AND AFTER OCTOBER 16, 1979. BECAUSE OF THESE INCREASED DUTIES, HER POSITION WAS REEVALUATED AND ULTIMATELY DETERMINED TO BE THAT OF A SECRETARY-STENOGRAPHER, GRADE GS-318-05. WHILE THIS REEVALUATION TOOK PLACE IN APRIL 1980, IT WAS NOT UNTIL JANUARY 1981 THAT HER POSITION WAS UPGRADED AND NOT UNTIL MARCH 8, 1981, THAT SHE WAS PROMOTED TO THE RECLASSIFIED POSITION. DUE TO THE DELAY IN HER PROMOTION, MS. LININGER IS SEEKING BACKPAY FOR THE PERIOD THAT HER POSITION REMAINED CLASSIFIED AT THE LOWER GRADE LEVEL.

AS THE FACTS INDICATE, THIS MATTER IS ONE WHICH CONCERNS DELAY IN CLASSIFICATION FOR WHICH AN INDIVIDUAL SEEKS A RETROACTIVE PROMOTION. THIS SITUATION HAS BEEN THE SUBJECT OF NUMEROUS CASES IN WHICH WE CONSISTENTLY HAVE DENIED THE REQUESTED RELIEF. SEE MATTER OF MCGRATH, 57 COMP.GEN. 404 (1978), AND MATTER OF DEMICH, B-191974, SEPTEMBER 19, 1978, COPIES ENCLOSED.

THE GENERAL RULE IN CLASSIFICATION MATTERS IS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH SHE IS APPOINTED, REGARDLESS OF THE DUTIES SHE PERFORMS. WHEN AN EMPLOYEE PERFORMS DUTIES NORMALLY PERFORMED BY ONE IN A GRADE LEVEL HIGHER THAN THE GRADE SHE HOLDS, SHE IS NOT ENTITLED TO THE SALARY OF THE HIGHER GRADE LEVEL UNTIL THE TIME WHEN SHE IS PROMOTED TO THE HIGHER GRADE LEVEL. MATTER OF MCGRATH, 57 COMP.GEN. AT PAGE 405. THE SUPREME COURT OF THE UNITED STATES HAS SPECIFICALLY RULED THAT THERE IS NO SUBSTANTIVE RIGHT TO BACKPAY FOR PERIODS OF WRONGFUL CLASSIFICATION UNDER THE CLASSIFICATION STATUTES, 5 U.S.C. SEC. 5101 ET SEQ., AND THAT THE BACK PAY ACT, 5 U.S.C. SEC. 5596, LIKEWISE DOES NOT PROVIDE A MONETARY REMEDY FOR IMPROPER CLASSIFICATION. UNITED STATES V. TESTAN, 424 U.S. 392 (1976).

WE RECOGNIZE THE FRUSTRATING EXPERIENCE ENCOUNTERED BY YOUR CONSTITUENT IN HAVING TO WAIT SO LONG FOR HER POSITION TO BE UPGRADED, BUT THERE IS NO LEGAL BASIS TO AUTHORIZE THE REQUESTED RETROACTIVE PROMOTION, ESPECIALLY IN VIEW OF THE SUPREME COURT'S DECISION IN TESTAN.

AS YOU REQUESTED, WE ARE RETURNING THE CORRESPONDENCE THAT YOU FORWARDED WITH YOUR LETTER.

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