B-173255, JUL 14, 1971

B-173255, JUL 14, 1971

CIVILIAN EMPLOYEE - CLAIM FOR BACK PAY CONCERNING CLAIM OF MRS. OCTA R. WHITELEY FOR COMPENSATION BELIEVED TO BE DUE FOR SERVICES RENDERED AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE. THE ALLEGATION OF CLAIMANT THAT SHE WAS DISCRIMINATED AGAINST BECAUSE OF AGE, SEX AND RELIGION WAS NOT ACCEPTED BY THE DEPARTMENT OF AGRICULTURE OR THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION, AND EVEN IF SHOWN, THIS WOULD NOT HAVE BEEN A BASIS FOR ENTITLEMENT TO BACK PAY.

TO MRS. OCTA R. WHITELEY,

THIS WILL REFER TO YOUR LETTER OF MAY 23, 1971, IN WHICH YOU EXPRESS DISSATISFACTION WITH OUR CLAIMS DIVISION'S DENIAL OF YOUR CLAIM FOR COMPENSATION BELIEVED TO BE DUE FOR SERVICES YOU RENDERED AS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE FROM 1963 UNTIL THE DATE OF YOUR MANDATORY RETIREMENT IN 1969.

THE CIRCUMSTANCES UNDERLYING YOUR CLAIM WERE FULLY STATED IN THE SETTLEMENT CERTIFICATE OF MAY 11, 1971. YOU HAVE EXPRESSED THE OPINION THAT OUR DENIAL OF YOUR CLAIM IS "ANOTHER CASE OF INJUSTICE BECAUSE YOU (WE) DID NOT GET THE FACTS FROM THE U.S.D.A. OR THE CIVIL SERVICE COMMISSION." IN THIS CONNECTION WE WISH TO ADVISE YOU THAT ALL RELEVANT FILE MATERIALS WERE REQUESTED FROM BOTH OF THOSE SOURCES AND WERE RECEIVED AND CONSIDERED BY OUR OFFICE IN DETERMINING THE MERITS OF YOUR CLAIM.

AS STATED IN THE CLAIMS SETTLEMENT OUR REVIEW OF YOUR PARTICULAR SITUATION IS LIMITED BY LAW TO THE QUESTION OF YOUR ENTITLEMENT TO ADDITIONAL COMPENSATION FOR THE TIME PERIOD IN QUESTION. WE HAVE NO AUTHORITY FOR INQUIRING INTO MATTERS OF GRIEVANCE PROCEEDINGS, HEARINGS, AND DESK AUDITS AS THEY MAY RELATE TO YOUR BEING PASSED OVER FOR A PROMOTION TO WHICH YOU BELIEVE YOU WERE ENTITLED. THESE ARE MATTERS PROPERLY WITHIN THE JURISDICTION OF THE EMPLOYING AGENCY AND THE CIVIL SERVICE COMMISSION.

INSOFAR AS YOU CLAIM COMPENSATION AT GRADES HIGHER THAN YOUR ACTUAL APPOINTMENT, IT IS WELL-SETTLED LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARY OF POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. GANSE V UNITED STATES, 180 CT. CL. 183 (1967).

THE BACK PAY ACT OF 1966, CODIFIED AS 5 U.S.C. 5596, PROVIDES IN SUBSTANCE THAT WHEN AN ADMINISTRATIVE DETERMINATION IS MADE THAT AN EMPLOYEE HAS UNDERGONE AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" RESULTING IN A REDUCTION IN HIS PAY HE IS ENTITLED UPON CORRECTION OF THAT ACTION TO ALL OF THE PAY DIFFERENTIALS HE WOULD HAVE RECEIVED IF THE IMPROPER PERSONNEL ACTION HAD NOT OCCURRED. OUR OFFICE HAS HELD THAT A FAILURE TO PROMOTE AS A RESULT OF DISCRIMINATION OR OTHER UNJUSTIFIED CAUSE IS NOT SUCH AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" AS TO ENTITLE THE EMPLOYEE ADVERSELY AFFECTED THEREBY TO BACK PAY. SEE B- 165571(1), JULY 18, 1969, COPY ENCLOSED.

THE RECORD SHOWS THAT YOUR GRIEVANCE ALLEGING DISCRIMINATION ON ACCOUNT OF SEX, RELIGION, AND AGE WAS REJECTED BY THE DEPARTMENT OF AGRICULTURE FOR THE STATED REASONS THAT IT WAS NOT TIMELY FILED AND NO CORRECTIVE ACTION COULD BE TAKEN IN LIGHT OF YOUR MANDATORY RETIREMENT ON ACCOUNT OF AGE. THIS DECISION WAS SUSTAINED BY THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION IN A LETTER DIRECTED TO YOU ON DECEMBER 1, 1969, FROM THE DIRECTOR OF THE BOARD. HOWEVER, AS HEREINABOVE INDICATED, EVEN IF DISCRIMINATION HAD BEEN ESTABLISHED, IT WOULD NOT HAVE BEEN A BASIS FOR ENTITLEMENT TO BACK PAY.

ON THE BASIS OF OUR REVIEW OF THE RECORD AND THE APPLICABLE PRINCIPLES OF LAW, THE SETTLEMENT OF OUR CLAIMS DIVISION IS SUSTAINED.