B-190636, FEB 8, 1978

B-190636, FEB 8, 1978

1. EMPLOYEE PERFORMED CERTAIN DUTIES WHILE POSITION OF DEPARTMENT CHIEF WAS VACANT, BUT EMPLOYEE WAS NOT QUALIFIED TO ASSUME FULL RESPONSIBILITIES OF DEPARTMENT CHIEF POSITION. SINCE DUTIES PERFORMED DID NOT CONSTITUTE DETAIL TO ESTABLISHED HIGHER-GRADE POSITION, EMPLOYEE IS NOT ENTITLED TO RETROACTIVE TEMPORARY PROMOTION AND BACK PAY. 2. EMPLOYEE'S POSITION WAS CLASSIFIED UPWARD TO GS-9 AS RESULT OF CLASSIFICATION APPEAL. EMPLOYEE'S CLAIM FOR BACK PAY AT GS-9 LEVEL IS DENIED BECAUSE UNDER DECISION OF SUPREME COURT IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), CLASSIFICATION ACTION MAY NOT BE MADE RETROACTIVE SO AS TO ENTITLE EMPLOYEE TO BACK PAY.

NANCY M. MILLER - CLAIM FOR BACK PAY FOR DETAIL AND WRONGFUL CLASSIFICATION:

THIS ACTION CONCERNS AN APPEAL BY MS. NANCY M. MILLER FROM THE DENIAL BY OUR CLAIMS DIVISION OF HER CLAIM FOR A RETROACTIVE PROMOTION AND BACK PAY AS AN EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE.

THE RECORD INDICATES THAT PRIOR TO AUGUST 1973, MS. MILLER WAS EMPLOYED AS A SOCIAL SERVICE REPRESENTATIVE, GRADE GS-7, IN THE SOCIAL SERVICES DEPARTMENT AT THE PUBLIC HEALTH SERVICE HOSPITAL IN NORFOLK, VIRGINIA. FROM AUGUST 1973 THROUGH APRIL 27, 1974, SHE WAS THE ONLY EMPLOYEE, OTHER THAN CLERICAL SUPPORT, IN THE SOCIAL SERVICES DEPARTMENT. DURING THAT PERIOD OF TIME, THE POSITION OF CHIEF, SOCIAL SERVICES DEPARTMENT, GRADE GS-11, WAS VACANT. ACCORDINGLY, MS. MILLER WAS EXCEPTED TO TAKE CARE OF THE DAILY OPERATIONS OF THE DEPARTMENT, WHICH REQUIRED HER TO PERFORM SOME DUTIES AND RESPONSIBILITIES WHICH WERE NOT PART OF HER JOB DESCRIPTION. THE POSITION OF DEPARTMENT CHIEF, HOWEVER, WAS ESTABLISHED AS A PROFESSIONAL SOCIAL WORKER, REQUIRING A MASTER'S DEGREE IN SOCIAL WORK, WHICH MS. MILLER DID NOT HAVE. SHE COULD NOT, THEREFORE, ASSUME THE FULL RESPONSIBILITIES OF THE POSITION SINCE SHE DID NOT POSSESS THE REQUISITE QUALIFIFCATIONS. ON APRIL 28, 1974, THE POSITION OF CHIEF, SOCIAL SERVICES DEPARTMENT WAS UPGRADED TO GRADE GS-12 AND WAS FILLED BY THE APPOINTMENT OF A PROFESSIONAL SOCIAL WORKER.

IN MAY 1975 MS. MILLER INITIATED A CLASSIFICATION APPEAL. ALTHOUGH PROMOTED TO GRADE GS-8 IN MARCH 1976, MS. MILLER PERSISTED IN THAT APPEAL. ON AUGUST 17, 1976, THE DIRECTOR OF THE OFFICE OF PERSONNEL, PUBLIC HEALTH SERVICE, SUSTAINED MS. MILLER'S APPEAL AND DETERMINED THAT THE CORRECT CLASSIFICATION OF HER POSITION SHOULD BE SOCIAL SERVICE REPRESENTATIVE, GRADE GS-9. MS. MILLER WAS PROMOTED TO THAT GRADE EFFECTIVE AUGUST 29, 1976.

MS. MILLER CLAIMED THAT SHE PERFORMED THE DUTIES OF CHIEF, SOCIAL SERVICES DEPARTMENT FROM AUGUST 1973 THROUGH APRIL 27, 1974, AND REQUESTED A RETROACTIVE PROMOTION AND BACK PAY AT THE GS-11 LEVEL FOR THAT PERIOD. THE EMPLOYING AGENCY RECOMMENDED THAT THE CLAIM BE DENIED ON THE GROUNDS THAT MS. MILLER WAS NEVER OFFICALLY DETAILED IN WRITING TO THE POSITION OF DEPARTMENT CHIEF, AND THAT THE ADDITIONAL DUTIES WHICH SHE PERFORMED WERE NOT ASSOCIATED WITH A SPECIFIC CLASSIFIED POSITION. ON JULY 29, 1977, THE CLAIMS DIVISION ISSUED A SETTLEMENT DENYING MS. MILLER'S CLAIM BASED ON THE GENERAL RULE OF LAW THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS ACTUALLY APPOINTED, REGARDLESS OF THE DUTIES HE PERFORMS.

IN A LETTER DATED SEPTEMBER 16, 1977, MS. MILLER APPEALED THE SETTLEMENT ISSUED BY THE CLAIMS DIVISION. IN SO DOING, SHE DOES NOT CONTEST THE DENIAL OF HER CLAIM FOR PAY AT THE GS-11 LEVEL. RATHER SHE CONTENDS THAT SHE SHOULD HAVE BEEN PAID AT THE GS-9 LEVEL FOR THE ENTIRE PERIOD FROM AUGUST 1973 UNTIL AUGUST 29, 1976. IT IS HER VIEW THAT THROUGHOUT THAT PERIOD OF TIME, SHE PERFORMED DUTIES WHICH WERE NOT IN HER JOB DESCRIPTION AND WERE IN FACT ASSOCIATED WITH HIGHER GRADED POSITIONS. SHE FURTHER BASES HER CLAIM ON THE ACTION TAKEN BY THE AGENCY TO RECLASSIFY HER POSITION TO THE GS-9 LEVEL. THE RECLASSIFICATION CONSTITUTES, IN HER OPINION, PROOF THAT SHE HAD BEEN PERFORMING GS-9 DUTIES SINCE AT LEAST AUGUST 1973. SHE, THEREFORE, CONSIDERS THE ENTIRE PERIOD FROM THAT DATE UNTIL AUGUST 29, 1976, TO CONSTITUTE A DETAIL TO GRADE GS-9, AND ACCORDINGLY REQUESTS A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.

IN OUR DECISION EVERETT TURNER-DAVID L. CALDWELL, 55 COMP.GEN. 539 (1975), WE HELD THAT EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS, WITHOUT CIVIL SERVICE COMMISSION APPROVAL, ARE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS WITH BACK PAY FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. SUBSEQUENTLY, IN MARIE GRANT, 55 COMP.GEN. 785 (1976), WE RULED THAT THE TURNER-CALDWELL DECISION APPLIED RETROACTIVELY TO EXTENDED DETAILS TO HIGHER-GRADE POSITIONS, SUBJECT ONLY TO THE TIME LIMITATION ON FILING CLAIMS IMPOSED BY 31 U.S.C. 71A. WE AFFIRMED BOTH THE AFOREMENTIONED DECISIONS IN RECONSIDERATION OF TURNER-CALDWELL, 56 COMP.GEN. 427 (1977).

IN ORDER FOR A DETAILED EMPLOYEE TO BE ELIGIBLE FOR A RETROACTIVE TEMPORARY PROMOTION, HOWEVER, IT IS NECESSARY THAT THE EMPLOYEE SATISFY CERTAIN GENERALLY REQUIRED CONDITIONS. THUS, WE HELD IN DECISION 56 COMP. GEN. 427 AT 431 THAT THE EMPLOYEE MUST SATISFY THE TIME-IN-GRADE REQUIREMENTS OF THE "WHITTEN AMENDMENT," 5 U.S.C. 3101 NOTE. SIMILARLY, WE HAVE HELD THAT THE DETAIL MUST BE TO AN ESTABLISHED HIGHER-GRADE POSITION, AND THAT THE REMEDIES PRESCRIBED IN TURNER CALDWELL ARE NOT AVAILABLE WHERE THE EMPLOYEE HAS PERFORMED THE DUTIES OF A HIGHER-GRADE POSITION WHICH HAS NOT BEEN CLASSIFIED. HUBERT J. BUTEAU, B-187287, MAY 13, 1977. FINALLY, IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), THE SUPREME COURT HELD THAT EMPLOYEES ARE NOT ENTITLED TO BACK PAY FOR ERRORS IN POSITION CLASSIFICATION LEVELS. ALTHOUGH WE VIEW THE TESTAN CASE AS LIMITED TO THE ISSUE OF IMPROPER CLASSIFICATION, IT IS CLEAR THAT CLASSIFICATION ACTIONS UPGRADING A POSITION MAY NOT BE MADE RETROACTIVELY SO AS TO ENTITLED THE INCUMBENTS TO BACK PAY. 56 COMP.GEN. 427 AT 430; GEORGE A. JACKSON, B-188617, SEPTEMBER 30, 1977.

IN THE PRESENT CASE, IT APPEARS THAT NEITHER THE AGENCY NOR MS. MILLER CONTEND THAT SHE WAS DETAILED TO THE POSITION OF CHIEF, SOCIAL SERVICES DEPARTMENT, GRADE GS-11. IN FACT, WERE SUCH AN ASSERTION MADE, IT WOULD APPEAR THAT A CLAIM BASED UPON AN IMPROPER DETAIL WOULD HAVE TO BE DENIED SINCE MS. MILLER EVIDENTLY DID NOT SATISFY ALL THE REQUIREMENTS FOR THE TEMPORARY PROMOTION. IT IS UNDISPUTED, HOWEVER, THAT MS. MILLER DID PERFORM SOME RESPONSIBILITIES BETWEEN AUGUST 1973 AND APRIL 28, 1974, WHICH WERE NOT PART OF HER JOB DESCRIPTION. THERE WAS, HOWEVER, NO DETAIL TO THE DUTIES OF A SPECIFIC CLASSIFIED POSITION, AS REQUIRED UNDER BUTEAU. SINCE, THERE WAS NO IMPROPER DETAIL, THE REMEDIES PRESCRIBED IN TURNER-CALDWELL ARE NOT AVAILABLE IN THE PRESENT CASE. FINALLY, ALTHOUGH MS. MILLER'S POSITION MAY HAVE BEEN WRONGFULLY CLASSIFIED UNTIL AUGUST 29, 1976, IT IS CLEAR THAT UNDER THE DECISION OF THE SUPREME COURT IN TESTAN, THE CLASSIFICATION ACTION UPGRADING MS. MILLER'S POSITION MAY NOT BE MADE RETROACTIVE SO AS TO ENTITLE HER TO BACK PAY. THERE IS, THEREFORE, NO LEGAL BASIS ON WHICH HER CLAIM MAY BE PAID.

ACCORDINGLY, WE SUSTAIN THE SETTLEMENT OF OUR CLAIMS DIVISION IN THIS MATTER.