B-174655, JAN 20, 1972

B-174655, JAN 20, 1972

CIVILIAN EMPLOYEE - PAY FOR POSITION OCCUPIED DECISION SUSTAINING PRIOR DENIAL OF A CLAIM BY ARTHUR BLACKS IN FOR RETROACTIVE COMPENSATION ALLEGED TO BE DUE AS AN EMPLOYEE OF THE DEPARTMENT OF THE TREASURY. THE CLAIM WAS PROPERLY DISALLOWED SINCE THE RECORD SHOWS THAT CLAIMANT WAS PAID AT THE APPROPRIATE RATE FOR THE POSITION OCCUPIED. SEE 20 COMP. GEN. 267 (1940). THE QUESTIONS PERTAINING TO ALLEGED DISCRIMINATION IN THE PROMOTION POLICIES SHOULD BE APPEALED TO THE CIVIL SERVICE COMMISSION. 5 C.F.R. 713.233.

TO MR. ARTHUR BLACKS IN:

THIS REFERS TO YOUR LETTER OF AUGUST 20, 1971, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JULY 21, 1971, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE COMPENSATION ALLEGED TO BE DUE AS AN EMPLOYEE OF THE DEPARTMENT OF THE TREASURY.

THE INFORMATION OF RECORD SHOWS THAT AS AN EMPLOYEE OF THE BUREAU OF CUSTOMS YOU WERE PROMOTED TO IMPORT SPECIALIST, GS-12, ON MAY 11, 1970, AFTER A DETERMINATION WAS MADE THAT YOU WERE NOT PROPERLY CONSIDERED UNDER VACANCY ANNOUNCEMENT NO. 68-14, DATED MARCH 6, 1968. YOU HAD BEEN REMOVED FROM THE BEST-QUALIFIED CANDIDATE LIST BASED ON ERRONEOUS INTERPRETATION OF THE BUREAU'S REQUIREMENT FOR ROTATION THROUGH THE IMPORT SPECIALIST ASSIGNMENT. AFTER IT WAS DETERMINED THAT A PROCEDURAL ERROR HAD OCCURRED, YOU WERE GIVEN THE NEXT APPROPRIATE VACANCY IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN SECTION 335 OF THE FEDERAL PERSONNEL MANUAL.

SINCE THE RECORD SHOWS THAT FOR THE PERIOD INVOLVED YOU PERFORMED THE DUTIES OF AN IMPORT SPECIALIST, GS-11, AND RECEIVED THE COMPENSATION ATTACHED TO THAT POSITION, YOU ARE NOT ENTITLED TO THE DIFFERENCE IN PAY BETWEEN AN IMPORT SPECIALIST, GS-12 (TEAM LEADER), AND AN IMPORT SPECIALIST, GS-11. THIS IS FOR THE REASON THAT THE ESTABLISHED PRINCIPLE OF LAW IS THAT A FEDERAL EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE PROPERLY IS APPOINTED, REGARDLESS OF THE DUTIES AND RESPONSIBILITIES ASSIGNED TO HIM AND WHETHER THE APPOINTMENT TO SUCH POSITION RESULTS FROM ADMINISTRATIVE ERROR OR INADVERTENCE. SEE 20 COMP. GEN. 267 (1940); 18 ID. 907 (1939); 17 ID. 323 (1937); 6 ID. 133 (1926); PRICE V UNITED STATES, 80 F. SUPP. 542; DVORKIN V UNITED STATES, 101 CT. CL. 296; AND COLEMAN V UNITED STATES, 100 CT. CL. 41.

SINCE THE RECORD SHOWS YOU OCCUPIED A POSITION OF IMPORT SPECIALIST, GS- 11, DURING THE PERIOD OF YOUR CLAIM, THERE IS NO AUTHORITY OF LAW FOR PAYMENT TO YOU OF ANY COMPENSATION EXCEPT THAT APPLICABLE TO SAID POSITION.

YOU SAY THAT THIS WAS NOT A PROCEDURAL ERROR BUT WAS IN THE NATURE OF A DISCRIMINATORY ACTION BY THE REGIONAL COMMISSIONER TO DISQUALIFY YOU AND DENY YOUR PROMOTION. YOU ARE REQUESTING THAT OUR OFFICE CONDUCT AN INVESTIGATION IN THE MATTER TO DEVELOP THE DISCRIMINATORY NATURE OF THE ACTION TAKEN IN YOUR CASE. IT IS NOT WITHIN THE PROVINCE OF THIS OFFICE TO CONDUCT INVESTIGATIONS OF ALLEGATIONS OF DISCRIMINATION IN EMPLOYMENT IN OTHER AGENCIES OF THE GOVERNMENT. THIS IS A MATTER FOR HANDLING BY YOUR OWN AGENCY AND/OR THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH EXECUTIVE ORDERS 11246, DATED AUGUST 31, 1968, AND 11478, DATED AUGUST 8, 1969, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO, 5 CFR 713. IN THAT CONNECTION WE NOTE FROM THE FILE THAT THE EQUAL EMPLOYMENT OPPORTUNITY OFFICER OF YOUR AGENCY FOUND THAT NO DISCRIMINATION EXISTED IN YOUR CASE.

IN RESPONSE TO YOUR QUESTION AS TO WHERE YOU MAY APPEAL THE ALLEGED DISCRIMINATORY ACTION, YOU ARE ADVISED THAT THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PROVIDE FOR APPEAL TO THE COMMISSION OF THE ADVERSE ACTION OF AN EMPLOYEE'S AGENCY ON HIS COMPLAINT OF DISCRIMINATION. HOWEVER, THE TIME LIMIT PRESCRIBED IS 15 DAYS BUT MAY BE EXTENDED UNDER CERTAIN CIRCUMSTANCES. SEE 5 CFR 713.233. AS TO ANY COURT ACTION CONTEMPLATED, SEE 28 U.S.C. 1346 AND 1491.