B-177195, DEC 14, 1972

B-177195, DEC 14, 1972

CLAIM FOR BACK SALARY - HIGHEST PREVIOUS RATE RULE - RACIAL DISCRIMINATION DECISION SUSTAINING THE PRIOR DENIAL OF A CLAIM FOR BACK SALARY INCIDENT TO CLAIMANT'S EMPLOYMENT AS A CLERK-STENOGRAPHER, GS-3, AT THE NAVAL ORDNANCE STATION, LOUISVILLE, KY. CLAIMANT'S REEMPLOYMENT AS A GS-3, A DEMOTION FROM HER PREVIOUS EMPLOYMENT AS A GS-5, WAS NOT IN VIOLATION OF THE "HIGHEST-PREVIOUS RATE" RULE, 5 CFR 531.203(C), WHICH MAY BE APPLIED IN THE DISCRETION OF THE EMPLOYING AGENCY. SINCE CLAIMANT WAS NOT AN EXCEPTION TO THE NAVY'S POLICY NOT TO USE A STEP ABOVE THE MINIMUM STEP REQUIRED BY LAW, THE CLAIM IS AGAIN DENIED. HOWEVER, THIS DETERMINATION DOES NOT PRECLUDE AN ACTION IN THE COURT OF CLAIMS UNDER 28 U.S.C. 1491 FOR RELIEF FOR THE ALLEGED RACIAL DISCRIMINATION.

TO MRS. DOROTHY J. DEAN:

WE REFER TO YOUR LETTER DATED SEPTEMBER 25, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM FOR BACK SALARY UNDER THE PROVISIONS OF 5 U.S.C. 5596, IN THE AMOUNT OF $3,508, INCIDENT TO YOUR EMPLOYMENT WITH THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY (NOSLOU).

THE FACTS UNDERLYING YOUR CLAIM WILL NOT BE REPEATED IN DETAIL SINCE THEY WERE FULLY RELATED IN OUR SETTLEMENT CERTIFICATE, DATED AUGUST 31, 1972. SO FAR AS MATERIAL, HOWEVER, THE RECORD INDICATES THAT YOUR CLAIM PERTAINS TO THE RATE OF PAY GIVEN YOU UPON YOUR REEMPLOYMENT WITH THE FEDERAL GOVERNMENT UNDER AN INTERMITTENT APPOINTMENT ON FEBRUARY 11, 1969, AS A CLERK-STENOGRAPHER, GS-3, STEP 1. PRIOR THERETO, YOU WERE A PROCUREMENT ASSISTANT, GS-5, STEP 8, UNTIL YOU RESIGNED FROM THAT POSITION ON MARCH 22, 1968.

IT IS APPARENTLY YOUR VIEW THAT, BECAUSE OF RACIAL DISCRIMINATION, THE RATE OF PAY GIVEN YOU UPON YOUR REEMPLOYMENT WAS LOWER THAN THAT PERMITTED UNDER THE "HIGHEST-PREVIOUS-RATE" RULE, STATED IN 5 CFR 531.203(C). THIS IS THE UNJUSTIFIED PERSONNEL ACTION WHICH YOU IDENTIFY AS COMING WITHIN THE PROVISIONS OF 5 U.S.C. 5596.

THE RECORD FURTHER SHOWS THAT THE MATTERS HERE INVOLVED (APPLICATION OF THE "HIGHEST-PREVIOUS-RATE" RULE AND THE ISSUE OF RACIAL DISCRIMINATION) WERE THE SUBJECT OF REVIEWS BY BOTH YOUR ADMINISTRATIVE AGENCY AND THE CIVIL SERVICE COMMISSION, IN WHICH IT WAS FOUND THAT YOUR AGENCY DID NOT DISCRIMINATE AGAINST YOU BECAUSE OF RACE WITH REGARD TO THE RATE OF PAY GIVEN YOU UPON REEMPLOYMENT ON FEBRUARY 11, 1969.

YOU STILL MAINTAIN THAT, NOTWITHSTANDING THE ABOVE DETERMINATIONS, YOU WERE DENIED THE BENEFITS OF THE "HIGHEST-PREVIOUS-RATE" RULE BECAUSE OF RACIAL DISCRIMINATION.

5 U.S.C. 5596 PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION CONCERNING THE "HIGHEST- PREVIOUS-RATE" RULE ARE CONTAINED IN 5 CFR 531.203(C) IN PERTINENT PART AS FOLLOWS:

"(C) POSITION OR APPOINTMENT CHANGES. SUBJECT TO SECS 531.204, 531.515, 539.201 OF THIS CHAPTER, AND SECTION 5334(A) OF TITLE 5, U.S.C. WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE. WHEN AN EMPLOYEE'S TYPE OF APPOINTMENT IS CHANGED IN THE SAME POSITION, THE AGENCY MAY CONTINUE TO PAY HIM AT HIS EXISTING RATE OR MAY PAY HIM AT ANY HIGHER RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE THE AGENCY MAY PAY HIM AT THE HIGHER RATE."

AS WILL BE NOTED FROM THE ABOVE REGULATIONS THE APPLICATION OF THE "HIGHEST-PREVIOUS-RATE" RULE IS A MATTER OF DISCRETION WITH THE EMPLOYING AGENCY. THE QUOTED RULE PERMITS EACH AGENCY TO FORMULATE ITS OWN POLICY REGARDING THE APPLICATION OF THE RULE. IN CONNECTION THEREWITH, WE NOTE THAT NOSLOU INSTRUCTION 12552.1A, ISSUED FEBRUARY 16, 1967, WHICH WAS IN EFFECT AT THE TIME OF YOUR REEMPLOYMENT, PROVIDED IN PARAGRAPHS 3-5 AS FOLLOWS:

"3. POLICY. IT IS THE POLICY OF THE NAVY NOT TO USE A STEP ABOVE THE MINIMUM STEP REQUIRED BY LAW OR REGULATION UNLESS IT IS IN THE INTEREST OF THE GOVERNMENT. WHEREVER A HIGHER RATE IS PERMISSIBLE, THE RATE SET WILL BE REVIEWED BY MANAGEMENT IN LIGHT OF THE NEEDS OF THE ACTIVITY, ASSESSMENT OF THE QUALITY OF THE EMPLOYEE, EQUITY AMONG EMPLOYEES, AND AVAILABILITY OF FUNDS. IN NO CASE WILL THERE BE AN "AUTOMATIC" PLACEMENT IN THE HIGHEST PERMISSIBLE RATE.

"4. EXCEPTION. THE ONLY EXCEPTION TO THE ABOVE STATED POLICY IS IN THE CASE OF AN EMPLOYEE OF THE DEPARTMENT OF DEFENSE WHO IS SCHEDULED FOR SEPARATION BY REDUCTION IN FORCE OR FAILURE TO ACCOMPANY A FUNCTION AND WHO IS PLACED ELSEWHERE IN THE DEPARTMENT OF DEFENSE BY REASSIGNMENT OR TRANSFER, OR REEMPLOYMENT WHILE ON A REEMPLOYMENT PRIORITY LIST. SUCH EMPLOYEE WILL HAVE HIS PAY ESTABLISHED IN THE NEW POSITION AT A STEP RATE WHICH PRESERVES TO HIM, SO FAR AS POSSIBLE, HIS LAST EARNED RATE. THIS LATTER REQUIREMENT DOES NOT PRECLUDE THE USE OF HIS HIGHEST PREVIOUS RATE UNDER THESE CIRCUMSTANCES.

"5. FACTORS IN DETERMINATION OF RATES. CONSIDERATION WILL BE GIVEN TO SUCH FACTORS AS THE TYPE OF WORK PREVIOUSLY PERFORMED, LENGTH OF SERVICE IN APPROPRIATE POSITIONS OR RATINGS, THE TIME THAT HAS ELAPSED SINCE LAST EMPLOYMENT, SALARY RATES OF SUPERVISORS UNDER WHOM THEY WILL WORK, AND RECRUITING DIFFICULTIES WHICH MAY BE ENCOUNTERED."

IN VIEW OF THE ABOVE AND SINCE THERE APPEARS TO HAVE BEEN NO ADMINISTRATIVE ERROR OR MANDATORY INSTALLATION POLICY TO ESTABLISH THE SALARY RATE OF A REEMPLOYED EMPLOYEE AT THE HIGHEST PREVIOUS SALARY RECEIVED BY HIM, THE SETTING OF RATE OF YOUR PAY UPON REEMPLOYMENT AT A GS -3, STEP 1, WAS NOT IMPROPER. SEE B-104166, 31 COMP. GEN. 15 (1951), COPY ENCLOSED.

FURTHERMORE, WE POINT OUT THAT TO QUALIFY FOR BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 5596, THERE MUST BE A CORRECTION OF THE ALLEGED ERRONEOUS PERSONNEL ACTION. NO SUCH CORRECTION WAS DEEMED APPROPRIATE IN YOUR CASE.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM MUST BE SUSTAINED.

CONCERNING YOUR QUESTION AS TO WHETHER YOU MAY SEEK RELIEF IN THE UNITED STATES COURT OF CLAIMS, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 28 U.S.C. 1491, IT WOULD APPEAR THAT YOU MAY FILE SUIT IN THAT COURT IF YOU SO DESIRE.