B-187923, AUGUST 9, 1977

B-187923: Aug 9, 1977

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TO THE DATE THE POSITION WAS ESTABLISHED AND CLASSIFIED ON MAY 21. THE PERTINENT FACTS AND CIRCUMSTANCES UPON WHICH THE SUBMISSION IS BASED MAY BE SUMMARIZED AS FOLLOWS: DURING THE PERIOD JULY 1975 UNTIL FEBRUARY 1976. WHEN HE WAS REASSIGNED. ANOTHER EMPLOYEE OF THE FOREST SERVICE WAS OFFICIALLY ASSIGNED TO A GRADE GS-15 PROGRAM MANAGER POSITION AT THE PACIFIC SOUTHWEST RESEARCH STATION BUT WAS ON DETAIL AT THE ROCKY MOUNTAIN RESEARCH STATION. EVEN THOUGH THE FOREST SERVICE HAD NOT CLASSIFIED THE DUTIES TO WHICH THE CLAIMANT WAS ASSIGNED ON OCTOBER 6. THE AGENCY REPORTS THAT HE WAS REQUIRED TO PERFORM A DIFFICULT JOB IN THE ABSENCE OF THE PROGRAM MANAGER INCLUDING COORDINATING IMPORTANT ELEMENTS OF THE POSITION.

B-187923, AUGUST 9, 1977

EMPLOYEE CLAIMS BACK PAY FOR PERIOD WHEN HE PERFORMED DUTIES NORMALLY ASSIGNED TO HIGHER LEVEL POSITION. CLAIM MAY NOT BE PAID SINCE EMPLOYEE CANNOT BE PROMOTED TO POSITION WHICH HAS NOT BEEN CLASSIFIED.

ROBERT L. IRWIN - RETROACTIVE PROMOTION WITH BACK PAY:

THIS ACTION ARISES FROM A REQUEST FOR AN ADVANCE DECISION BY MR. W. R. OTTERSON, DEPARTMENT OF PERSONNEL MANAGEMENT, FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, AS TO WHETHER AN EMPLOYEE OF THAT AGENCY, MR. ROBERT L. IRWIN, MAY RECEIVE A RETROACTIVE PROMOTION AND BACK PAY FOR PERFORMING DUTIES WHILE ON DETAIL AT A HIGHER GRADE LEVEL FROM THE 121ST DAY OF SUCH DETAIL FEBRUARY 4, 1976, TO THE DATE THE POSITION WAS ESTABLISHED AND CLASSIFIED ON MAY 21, 1976.

THE PERTINENT FACTS AND CIRCUMSTANCES UPON WHICH THE SUBMISSION IS BASED MAY BE SUMMARIZED AS FOLLOWS: DURING THE PERIOD JULY 1975 UNTIL FEBRUARY 1976, WHEN HE WAS REASSIGNED, ANOTHER EMPLOYEE OF THE FOREST SERVICE WAS OFFICIALLY ASSIGNED TO A GRADE GS-15 PROGRAM MANAGER POSITION AT THE PACIFIC SOUTHWEST RESEARCH STATION BUT WAS ON DETAIL AT THE ROCKY MOUNTAIN RESEARCH STATION. THE CLAIMANT, MR. IRWIN CONTINUED TO PERFORM IN THE POSITION OF ACTING PROGRAM MANAGER UNTIL HIS PROMOTION TO GRADE GS-14 ON JUNE 6, 1976. EVEN THOUGH THE FOREST SERVICE HAD NOT CLASSIFIED THE DUTIES TO WHICH THE CLAIMANT WAS ASSIGNED ON OCTOBER 6, 1975, THE AGENCY REPORTS THAT HE WAS REQUIRED TO PERFORM A DIFFICULT JOB IN THE ABSENCE OF THE PROGRAM MANAGER INCLUDING COORDINATING IMPORTANT ELEMENTS OF THE POSITION, CONSULTING WITH CONTRACTORS, COORDINATING MULTIAGENCY PROBLEMS, AND COORDINATING THE PREPARATION OF OPERATIONAL MANUALS. A TEMPORARY PROMOTION COULD NOT BE EFFECTED UNTIL MAY 21, 1976, AS THERE WAS NO POSITION IN WHICH MR. IRWIN COULD BE PLACED AND A POSITION COULD NOT BE ESTABLISHED UNTIL THE PREDECESSOR POSITION HAD BEEN ABOLISHED.

THE SPECIFIC QUESTION ASKED IS WHETHER AN EMPLOYEE MAY BE PAID FOR PERFORMING AT A HIGHER GRADE LEVEL WHEN THE POSITION HAS NOT BEEN PROPERLY CLASSIFIED? IF SO, WOULD MR. IRWIN BE ENTITLED TO BACK PAY IN THIS SITUATION?

IN OUR DECISION, MATTER OF WILLIE W. CUNNINGHAM, 55 COMP.GEN. 1062 (1976), IT WAS HELD THAT AN EMPLOYEE CANNOT BE PROMOTED TO A POSITION THAT HAS NOT BEEN CLASSIFIED. WE STATED, IN PERTINENT PART, THAT THE CLASSIFICATION OF POSITIONS IS WITHIN THE DISCRETION OF THE AGENCY CONCERNED, SUBJECT TO REQUESTS FOR REVIEW AND APPEALS BY EMPLOYEES OF THE AGENCY. IT WAS THEN CONCLUDED, COMMENCING AT PAGE 1065, AS FOLLOWS:

"AS NOTED IN 55 COMP.GEN. 515 (1975), THE CIVIL SERVICE COMMISSION'S REGULATIONS FOR POSITION CLASSIFICATION PROVIDE THAT THE EFFECTIVE DATE OF A CLASSIFICATION ACTION TAKEN BY AN AGENCY OR A CLASSIFICATION ACTION RESULTING FROM AN EMPLOYEE'S APPEAL IS THE DATE THE ACTION IS APPROVED OR THE APPEAL IS DECIDED OR A DATE SUBSEQUENT TO THAT DATE. SEE C.F.R. 511.701 ET SEQ., AND 532.701 ET SEQ. (1975). ABSENT ANY INDICATION THAT THE GRIEVANT'S POSITION WAS ILLEGALLY OR INTENTIONALLY MISCLASSIFIED, THERE IS NO AUTHORITY TO ALLOW A RETROACTIVE PROMOTION WITH BACK PAY ON THE GROUND THAT THERE WAS AN ERRONEOUS CLASSIFICATION DECISION. COMP.GEN. 631 (1973); 50 ID. 581 (1971); AND B-173831, SEPTEMBER 3, 1971. THEREFORE, UNTIL THE POSITION WAS CLASSIFIED UPWARD AND SHE WAS PROMOTED, THE GRIEVANT WAS NOT ENTITLED TO THE PAY OF THE HIGHER GRADED POSITION. DIANISH ET AL. V. UNITED STATES, 183 CT.CL. 702 (1968). IN THIS CONNECTION WE POINT OUT THAT THE ABOVE RULE CONCERNING CLASSIFICATION ACTIONS HAS RECENTLY BEEN CONFIRMED BY THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V. TESTAN ET AL., 44 U.S.L.W. 4245, DECIDED MARCH 2, 1976." SEE ALSO MATTER OF HUBERT J. BUTEAU, B-187287, MAY 13, 1977, AND MATTER OF WALTER F. RAY AND JOSEPH D. ELAM, B-187847, JANUARY 25, 1977.

IN VIEW OF OUR DETERMINATIONS IN THE AFORE CITED DECISIONS, A RETROACTIVE PROMOTION AND BACK PAY MAY NOT BE MADE TO MR. IRWIN. ACCORDINGLY, BOTH QUESTIONS ARE ANSWERED IN THE NEGATIVE.

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