B-157602, OCT. 18, 1965

B-157602, OCT. 18, 1965

TO MISS LORETTO B. FITZGERALD:

YOUR LETTER OF AUGUST 5, 1965, SUBMITS COPIES OF LETTERS CONCERNING YOUR EMPLOYMENT BY THE FEDERAL BUILDING HOUSING ADMINISTRATION, DENVER, COLORADO OFFICE-- ACTUALLY A TRANSFER FROM THE DEPARTMENT OF AGRICULTURE, OFFICE OF PRICE CONTROL, OMAHA, NEBRASKA--- ON FEBRUARY 21, 1955, IN GRADE GS-3 AT A SALARY RATE OF $3,430 PER ANNUM RATHER THAN AT A SALARY RATE OF $3,510 PER ANNUM, THE RATE EARNED IN YOUR PREVIOUS POSITION. YOU APPARENTLY FEEL THAT THE INFORMATION THEREIN PROVES THAT AN ADMINISTRATIVE ERROR WAS MADE BY THE FEDERAL HOUSING ADMINISTRATION IN EMPLOYING YOU AT THE LESSER RATE. YOU, THEREFORE, REQUEST THAT WE REOPEN YOUR CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 17, 1961.

THE RECORDS CONSIDERED BY US BEFORE WE ISSUED OUR DISALLOWANCE IN YOUR CASE SHOW THAT MR. E. F. DUFFY THE DIRECTOR OF THE DENVER OFFICE WHO, UNDER THE POLICY OF THE FEDERAL HOUSING ADMINISTRATION AT THAT TIME WAS RESPONSIBLE FOR SETTING THE INITIAL SALARY RATE, HAD PLACED A STATEMENT ON YOUR APPOINTMENT PAPERS AND HAD SIGNED THE STATEMENT WHICH READS AS FOLLOWS:

"THE SALARY RATE IS SET AT THE TOP OF GRADE GS-3 DUE REGARD HAVING (BEEN) PAID TO THE RIGHTS AND INTERESTS OF THE EMPLOYEE AND THE OFFICE.'

THE SALARY RATE OF $3,430 PER ANNUM WAS THE TOP STEP OF GRADE GS-3 AT THAT TIME OTHER THAN LONGEVITY RATES. ONE OF THE LETTERS SIGNED BY MR. DUFFY DATED MARCH 25, 1955, ADDRESSED TO MR. JOSEPH W. MCGUIRE, REGIONAL DIRECTOR, DENVER, COLORADO, POINTS OUT THAT YOU ENTERED ON DUTY AT THE RATE OF $3,430 PER ANNUM, THAT YOUR PREVIOUS RATE WAS $3,510 PER ANNUM AND THAT WHILE NO COMMITMENTS WERE MADE THAT THE HIGHER RATE WOULD BE GRANTED HE RECOMMENDED THAT SUCH HIGHER RATE BE AUTHORIZED IF POSSIBLE. UNDER DATE OF APRIL 25, 1955, MR. W. RICHARD LOMAX, ACTING DIRECTOR OF PERSONNEL, REPLIED THERETO TO THE EFFECT THAT NO ADMINISTRATIVE ERROR EXISTED CONCERNING YOUR APPOINTMENT AT THE RATE OF $3,430 PER ANNUM. MAY 5, 1955, APPARENTLY AT YOUR REQUEST, MR. DUFFY AGAIN ADVISED MR. LOMAX THAT AN ADMINISTRATIVE ERROR HAD BEEN MADE IN THE SALARY RATE UPON YOUR APPOINTMENT AND RECOMMENDED THAT THE MATTER BE RETROACTIVELY ADJUSTED. MR. LOMAX ON JULY 5, 1955, FURTHER ADVISED MR. DUFFY THAT AN ADMINISTRATIVE ERROR HAD NOT BEEN MADE IN YOUR CASE AND THAT, THEREFORE, NO ADJUSTMENT COULD BE MADE IN YOUR SALARY RATE AT THE TIME OF YOUR APPOINTMENT--- TRANSFER--- ON FEBRUARY 21, 1955. WE NOTE FROM THE LETTERS SUBMITTED BY YOU THAT YOUR EFFORTS TO SECURE A STATEMENT FROM MR. CHARLES TODD, THE ADMINISTRATIVE OFFICER WHO INTERVIEWED YOUR PRIOR TO YOUR EMPLOYMENT BY THE FEDERAL HOUSING ADMINISTRATION, WERE WITHOUT SUCCESS. APPARENTLY MR. TODD IN A STATEMENT DATED AUGUST 13, 1963, TO THE PRESENT DIRECTOR OF PERSONNEL, MR. JOE B. MONTGOMERY, INDICATED THAT THE QUESTION OF INITIAL SALARY WAS NOT DISCUSSED WHEN HE INTERVIEWED YOU.

IT LONG HAS BEEN A RULE OF OUR OFFICE THAT WHEN THERE IS A CONFLICT OR DISCREPANCY BETWEEN THE FACTS ADMINISTRATIVELY REPORTED AND THOSE ALLEGED BY THE CLAIMANT WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY.

IN OUR DECISION 31 COMP. GEN. 15, WHICH IS COMPARABLE TO YOUR CASE, WE HELD AS FOLLOWS:

"THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HIM, AND THEREFORE THE CORRECTION OF AN ADMINISTRATIVE ERROR MADE IN FIXING THE SALARY OF AN EMPLOYEE UPON REEMPLOYMENT AT A LOWER RATE THAN THE HIGHEST SALARY RATE PREVIOUSLY HELD BY SUCH EMPLOYEE CAN BE ACCOMPLISHED ONLY BY ADMINISTRATIVE ACTION AND UPON SHOWING THAT AN ADMINISTRATIVE ERROR WAS IN FACT MADE IN FIXING THE ORIGINAL SALARY RATE UPON REEMPLOYMENT.'

IT IS APPARENT FROM THE INFORMATION CONTAINED IN THE LETTERS SUBMITTED BY YOU THAT THE OFFICIAL ADMINISTRATIVE POSITION CONTINUES TO BE THAT NO ADMINISTRATIVE ERROR WAS MADE IN YOUR CASE.

IN VIEW OF THE FOREGOING WE FIND NO BASIS UPON THE PRESENT RECORD FOR CHANGING OUR SETTLEMENT OF FEBRUARY 17, 1961, WHICH DISALLOWED YOUR CLAIM.