B-158245, MAR. 4, 1966

B-158245, MAR. 4, 1966

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

WE REFER TO THE UNDER SECRETARY'S LETTER OF DECEMBER 27, 1965, REQUESTING A DECISION AS TO WHETHER ACTION MAY BE TAKEN TO CORRECT WHAT IS BELIEVED TO BE AN ADMINISTRATIVE ERROR THAT HAS CAUSED HARDSHIP TO AN EMPLOYEE OF YOUR DEPARTMENT. THE CIRCUMSTANCES RELATING TO THE PURPORTED ADMINISTRATIVE ERROR ARE SET FORTH IN AN ENCLOSED MEMORANDUM OF YOUR GENERAL COUNSEL.

THE MEMORANDUM OF TE GENERAL COUNSEL INDICATES THAT ADMINISTRATIVE ARRANGEMENTS HAD BEEN MADE ON OR BEFORE JUNE 23, 1964, TO REEMPLOY MRS. ELLYNE NICELEY IN THE COMMUNICABLE DISEASE CENTER, PUBLIC HEALTH SERVICE, AS A SECRETARY IN GRADE GS-5, STEP 6, SINCE SHE HAD FORMERLY BEEN EMPLOYED BY THE NATIONAL LABOR RELATIONS BOARD IN THE SAME STEP AND GRADE. ON JUNE 24, 1964, SHE ACCEPTED A TEMPORARY APPOINTMENT IN GRADE GS-1, STEP 1, FOR FOUR DAYS IN THE SAME CENTER FOR THE PURPOSE OF PARTICIPATING IN A STUDY TO BE CONDUCTED BY THE BEHAVIORAL SCIENCE UNIT. THE MEMORANDUM SHOWS THAT MRS. NICELEY AT FIRST WAS RELUCTANT TO PARTICIPATE IN THE STUDY BUT UPON BEING CONTACTED A SECOND TIME CONSENTED TO BEING PLACED IN THE GRADE GS-1 POSITION AND WORKED MONDAY THROUGH THURSDAY, JUNE 29 THROUGH JULY 2, A TOTAL OF FOUR DAYS. THUS, SHE ACCEPTED THE 4-DAY EMPLOYMENT SOLELY AT THE REQUEST AND FOR THE BENEFIT OF THE GOVERNMENT. WE NOTE FROM THE MEMORANDUM THAT WHEN IT WAS ADMINISTRATIVELY ASCERTAINED THAT MRS. NICELEY WAS AN EXPERIENCED SECRETARY SHE WAS GIVEN SOME OF THAT TYPE OF WORK TO DO IN RELATION TO THE STUDY. ON JULY 6, A MONDAY, SHE REPORTED FOR WORK IN THE GRADE GS-5, STEP 6, POSITION FOR WHICH PREVIOUS ARRANGEMENTS HAD BEEN MADE.

THE MEMORANDUM FURTHER SHOWS THAT ADMINISTRATIVE ACTION WAS TAKEN ON DECEMBER 6, 1964, TO GRANT MRS. NICELEY A WITHIN-GRADE INCREASE FROM STEP 6 TO STEP 7 OF HER GRADE GS-5 POSITION BASED UPON HER SERVICE WITH YOUR DEPARTMENT FROM JULY 6, I.E., FIVE MONTHS PLUS THE TIME SPENT WITH THE NATIONAL LABOR RELATIONS BOARD AT GRADE GS-5, STEP 6, OF ONE YEAR AND SEVEN MONTHS OR A TOTAL OF 104 CALENDAR WEEKS OF SERVICE, THE STATUTORY PERIOD REQUIRED FOR GRANTING THE WITHIN-GRADE INCREASE. SEE 5 U.S.C. 1121.

THE MEMORANDUM ALSO POINTS OUT THAT ON JULY 18, 1965, THE WITHIN GRADE INCREASE WAS ADMINISTRATIVELY CANCELLED APPARENTLY UPON THE BASIS THAT MRS. NICELEY'S LAST EMPLOYMENT PRIOR TO THE GRADE GS-5 POSITION WITH YOUR DEPARTMENT WAS AT GRADE GS-1 AND THAT HER REINSTATEMENT ON JULY 6, 1964, TO THE GRADE GS-5 POSITION REPRESENTED AN "EQUIVALENT INCREASE" UNDER THE PROVISIONS OF 5 U.S.C. 1121 THUS STARTING ANEW THE WAITING PERIOD FOR THE WITHIN-GRADE INCREASE TO STEP 7. WE NOTE THAT MRS. NICELEY HAS BEEN ADMINISTRATIVELY REQUESTED TO RETURN THE $106 OVERPAID FOR THE PERIOD DECEMBER 6, 1964, TO JULY 18, 1965.

WE ARE OF THE OPINION THAT IN THE CIRCUMSTANCES OF THIS CASE, AS SET FORTH ABOVE, THE INCREASE IN COMPENSATION DID NOT CONSTITUTE "AN EQUIVALENT INCREASE IN COMPENSATION" SO AS TO REQUIRE A NEW WAITING PERIOD FOR A WITHIN-GRADE INCREASE AS OF THE EFFECTIVE DATE (JULY 6) OF THE REINSTATEMENT TO THE GS-5 POSITION. SEE 30 COMP. GEN. 82; 31 ID. 149.

UNDER THE ABOVE CONCLUSION THE ORIGINAL ACTION TAKEN IN THIS MATTER GRANTING THE STEP INCREASE ON DECEMBER 6, 1964, IS CONSIDERED PROPER AND ACTION SHOULD BE TAKEN ACCORDINGLY.