B-173831, SEP 3, 1971

B-173831, SEP 3, 1971

CIVILIAN EMPLOYEE - PERFORMANCE OF DUTIES AT GRADE HIGHER THAN APPOINTED REAFFIRMING PRIOR DECISION DENYING CLAIM OF RALPH A. BUGLIONE, EMPLOYEE OF THE INTERNAL REVENUE SERVICE, TO RETROACTIVE PAY BASED UPON PERFORMANCE OF DUTIES AT AN ALLEGEDLY HIGHER GRADE THAN THE ONE TO WHICH HE WAS APPOINTED DURING THE PERIOD FROM MARCH 13, 1966 TO APRIL 18, 1971. CLASSIFICATION OF AN EMPLOYEE'S POSITION IS BASICALLY A JURISDICTIONAL MATTER, RESTING WITH THE EMPLOYING AGENCY OR THE CIVIL SERVICE COMMISSION. IN THE ABSENCE OF ILLEGAL OR INTENTIONAL MISCLASSIFICATION, AN EMPLOYEE IS ENTITLED ONLY TO THE PAY OF THE POSITION TO WHICH HE IS ASSIGNED, EVEN IF DUTIES PERFORMED WERE THOSE OF A HIGHER GRADE.

TO MR. RALPH A. BUGLIONE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2, 1971, IN WHICH YOU APPEAL THE SETTLEMENT BY OUR CLAIMS DIVISION OF YOUR CLAIM FOR RETROACTIVE PAY BASED UPON THE PERFORMANCE OF DUTIES AT AN ALLEGEDLY HIGHER GRADE THAN THE ONE TO WHICH YOU WERE APPOINTED DURING THE PERIOD FROM MARCH 13, 1966, TO APRIL 18, 1971, AS A REVENUE OFFICER OF THE INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY.

THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE INTERNAL REVENUE SERVICE ON MARCH 13, 1966, IN A POSITION WHICH WAS CLASSIFIED AS GS 1169-9. PRIOR TO ACCEPTANCE OF THAT POSITION YOU WERE A GS-12 SYSTEMS ACCOUNTANT WITH THE UNITED STATES ARMY IN PICATINNY ARSENAL, DOVER, NEW JERSEY. THE RECORD FURTHER SHOWS THAT ON MAY 15, 1970, YOU FILED A REQUEST WITH THE REGIONAL COMMISSIONER, MIDWEST REGION, FOR UPGRADING OF YOUR POSITION TO GRADE GS-11. ON JULY 24, 1970, YOUR REQUEST WAS DENIED. THEREAFTER YOU WERE AFFORDED THE OPPORTUNITY TO APPEAL ADMINISTRATIVELY THE DENIAL OF YOUR REQUEST. AT ALL LEVELS THE DENIAL WAS ADMINISTRATIVELY AFFIRMED. WHILE YOUR REQUEST FOR REVIEW OF THE ACTION OF THE ADMINISTRATIVE AGENCY WAS PENDING BEFORE THE UNITED STATES CIVIL SERVICE COMMISSION, YOU WERE PROMOTED ON APRIL 18, 1971, TO A POSITION IN GRADE GS-11.

YOU FILED A CLAIM WITH OUR CLAIMS DIVISION ON THE GROUND THAT THERE WAS NO SIGNIFICANT DIFFERENCE BETWEEN THE DUTIES YOU PERFORMED IN YOUR GS-9 AND GS-11 POSITIONS AND THEREFORE YOU REQUESTED A RETROACTIVE ADJUSTMENT OF PAY TO MARCH 13, 1966, AT THE GS-11 LEVEL. YOUR REQUEST WAS DENIED BY OUR CLAIMS DIVISION IN SETTLEMENT CERTIFICATE DATED JULY 29, 1971, ON THE GROUND THAT THE MATTER OF CLASSIFICATION DETERMINATIONS IS WITHIN THE JURISDICTION OF THE AGENCY CONCERNED AND THE UNITED STATES CIVIL SERVICE COMMISSION.

ON APPEAL YOU SUGGEST THAT WE REVIEW YOUR CASE IN LIGHT OF OUR DECISION 50 COMP. GEN. , B-165571, FEBRUARY 19, 1971, COPY ENCLOSED, IN WHICH WE OFFERED NO OBJECTION TO RETROACTIVE ADJUSTMENT OF COMPENSATION FOR AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO). IN THAT CASE THE ISSUE OF CLASSIFICATION OF THE POSITION OCCUPIED BY THE EMPLOYEE WAS RESOLVED BY OEO AND THE CIVIL SERVICE COMMISSION. THERE WAS AN ADMINISTRATIVE FINDING THAT THE POSITION WAS INTENTIONALLY MISCLASSIFIED ON THE GROUND OF DISCRIMINATION BECAUSE OF RACE OR SEX. SUCH DISCRIMINATION WAS CLEARLY IN VIOLATION OF 5 U.S.C. 7154(B) AND 5 CFR 713.202. UNDER THESE CIRCUMSTANCES, WE OFFERED NO OBJECTION TO A RETROACTIVE ADJUSTMENT OF PAY.

THE CLASSIFICATION OF YOUR POSITION IS BASICALLY A JURISDICTIONAL MATTER RESTING WITH YOUR AGENCY AND THE CIVIL SERVICE COMMISSION. SEE B-172808, JUNE 2, 1971, COPY ENCLOSED. WE POINT OUT, HOWEVER, THAT IN THE ABSENCE OF ILLEGAL AND INTENTIONAL MISCLASSIFICATION OF YOUR POSITION YOU ARE ENTITLED ONLY TO THE PAY OF THE POSITION TO WHICH YOU HAVE BEEN APPOINTED EVEN IF THE DUTIES WHICH WERE ASSIGNED TO YOU WERE OF A HIGHER DEGREE OF DIFFICULTY AND RESPONSIBILITY AND WERE ORDINARILY PERFORMED BY PERSONS PLACED IN A HIGHER GRADE THAN YOURS. SEE B 165730, JANUARY 17, 1969, COPY ENCLOSED, AND CASES CITED THEREIN.

FOR THE FOREGOING REASONS, THE SETTLEMENT OF JULY 29, 1971, DISALLOWING YOUR CLAIM MUST BE AND IS HEREBY SUSTAINED.

IN COMPLIANCE WITH YOUR REQUEST FOR THE RETURN OF THE COMPLETE FILE AFTER REVIEW, A COPY IS RETURNED FOR YOUR USE.