B-196175, AUG 6, 1980

B-196175, AUG 6, 1980

DIGEST: 1. EMPLOYEE CLAIMING RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR DETAIL TO CLASSIFIED POSITION IN HIGHER GRADE FOR PERIOD IN EXCESS OF AGENCY'S AUTHORITY MUST PROVE BEYOND REASONABLE DOUBT THAT HE ASSUMED FULL RANGE OF DUTIES, AUTHORITY, AND RESPONSIBILITY SET FORTH IN DESCRIPTION FOR POSITION TO WHICH DETAIL IS ALLEGED. 2. EMPLOYEE IN GRADE GS-14 CLAIMING DETAIL TO GRADE GS-16 FOR PERIOD IN EXCESS OF AGENCY'S AUTHORITY IS ENTITLED TO RETROACTIVE PROMOTION TO GRADE GS-15 AND BACK PAY FOR SUCH PERIOD PROVIDED THAT: (1) HE PROVES BEYOND REASONABLE DOUBT THAT HE ASSUMED FULL RANGE OF DUTIES, AUTHORITY, AND RESPONSIBILITY SET FORTH IN THE DESCRIPTION FOR THE GRADE GS-16 POSITION; AND (2) HE MET QUALIFICATIONS AND OTHER REQUIREMENTS FOR PROMOTION TO GRADE GS-15. 3. EMPLOYEE IN GRADE GS-14 WAS TEMPORARILY PROMOTED NONCOMPETIVELY FOR 120 DAYS TO CLASSIFIED POSITION IN GRADE GS-15. UPON TERMINATION OF PROMOTION, POSITION WAS CANCELLED APPARENTLY BECAUSE OF CSC COMPETITIVE SELECTION REQUIREMENTS BUT NOT BECAUSE POSITION WAS NO LONGER NEEDED. EMPLOYEE CONTINUED WITHOUT INTERRUPTION TO PERFORM DUTIES OF POSITION FOR APPROXIMATELY 8 MONTHS UNTIL POSITION WAS REESTABLISHED AND FOR ANOTHER 4 MONTHS UNTIL HE WAS PERMANENTLY PROMOTED TO IT COMPETITIVELY. EMPLOYEE WAS CONTINUOUSLY DETAILED TO GRADE GS-15 POSITION FROM TERMINATION OF TEMPORARY POSITION TO DATE OF PERMANENT PROMOTION.

THOMAS L. TYBURSKI - RETROACTIVE TEMPORARY PROMOTION AND BACK PAY:

THE CLAIMS GROUP OF THE FINANCIAL AND GENERAL MANAGEMENT STUDIES DIVISION HAS REQUESTED INSTRUCTIONS ON THE CLAIM OF MR. THOMAS S. TYBURSKI FOR BACK PAY FOR AN EXTENDED DETAIL TO A POSITION CLASSIFIED IN A GRADE HIGHER THAN THE GRADE OF THE POSITION TO WHICH HE WAS OFFICIALLY ASSIGNED. BECAUSE THIS CASE INVOLVES ISSUES WHICH MAY NOT HAVE BEEN DIRECTLY DECIDED BEFORE WE ARE RESPONDING BY DECISION. THE PERTINENT FACTS ARE AS FOLLOWS.

ON AUGUST 19, 1974, A VACANCY OCCURRED IN THE POSITION OF SPECIAL ASSISTANT FOR FIELD COORDINATION GS-301-16, CSC CERTIFICATION NO. LQ 0004, IN THE OFFICE OF THE UNDER SECRETARY OF LABOR. THEREAFTER, THIS GRADE GS- 16 POSITION CONTINUED IN EXISTENCE UNOCCUPIED FOR NEARLY A YEAR AND A HALF UNTIL ITS CANCELLATION ON FEBRUARY 11, 1976. EFFECTIVE THE DATE THE VACANCY OCCURRED, THE UNDER SECRETARY DESIGNATED MR. TYBURSKI, THEN A PROGRAM ANALYST GS-14, AS ACTING DIRECTOR OF THE FIELD COORDINATION STAFF AND ADVISED REGIONAL DIRECTORS THAT THEIR "NORMAL AND DAY-TO-DAY CONTACTS" SHOULD BE WITH THE NEW ACTING DIRECTOR AND HIS STAFF. THERE IS NO INDICATION THAT A GRADE GS-15 POSITION EXISTED IN THIS ORGANIZATION AT THAT TIME.

APPROXIMATELY 6 MONTHS LATER, ON FRIDAY, FEBRUARY 14, 1975, A POSITION WAS CLASSIFIED AS SPECIAL ASSISTANT FOR FIELD COORDINATION GS 301-15, POSITION NO. CS-0190. THE POSITION DESCRIPTION CONTAINED A NOTATION THAT THE POSITION WAS NOT TO BE FILLED CONCURRENTLY WITH THE GRADE GS-16 POSITION AND THE GRADE GS-15 POSITION APPEARS TO HAVE BEEN A RESTRUCTURING DOWNWARD OF THE GS-16 POSITION. THE SEVERAL DIFFERENCES BETWEEN THE DESCRIPTIONS FOR THE TWO POSITIONS SUGGEST A RELATIVELY LESSER DEGREE OF AUTHORITY AND RESPONSIBILITY IN THE GRADE GS-15 POSITION. THE MORE CONSPICIOUS DIFFERENCES ARE THE OMISSIONS FROM THE GRADE GS-15 POSITION DESCRIPTION OF THE FOLLOWING FUNCTIONS WHICH APPEAR IN THE GRADE GS-16 POSITION DESCRIPTION:

"(1) *** ASSISTS THE UNDER SECRETARY IN PROVIDING OVERALL DIRECTION AND GUIDANCE TO THE REGIONAL DIRECTORS TO ASSURE EFFECTIVE COORDINATION OF THE DEPARTMENT'S FIELD ACTIVITIES, AND EVALUATING OVERALL DEPARTMENT PERFORMANCE IN THE FIELD ON MATTERS DELEGATED BY THE SECRETARY OF LABOR."

"(2) SERVES AS THE DEPARTMENT'S REPRESENTATIVE ON THE UNDER SECRETARIES' WORKING GROUP (USWG) WHICH IDENTIFIES FEDERAL REGIONAL COUNCIL GENERATED ISSUES; MAKES RECOMMENDATIONS TO THE UNDER SECRETARIES' GROUP, DEVELOPS AGENDA ITEMS FOR THE FEDERAL REGIONAL COUNCILS, AND REVIEWS ACTIONS OF THE COUNCILS. MAINTAINS CLOSE LIAISON WITH COUNTERPARTS FROM OTHER AGENCIES REPRESENTED ON THE USWG (HEW, HUD, DOT, OEO, OMB, EPA, AND LEAA). INSURES DEPARTMENTAL PROGRAM OFFICES ARE INFORMED OF REGIONAL COUNCIL AND USWG ACTIVITIES. SOLICITS COOPERATION AND INPUT FROM PROGRAM OFFICES, PARTICULARLY ON PROBLEMS WITHIN THEIR AREAS OF RESPONSIBILITY AND EXPERTISE. PROVIDES ASSISTANCE TO REGIONAL DIRECTORS IN THEIR PARTICIPATION IN FEDERAL REGIONAL COUNCILS BY DIRECTING THE PREPARATION OF STAFF STUDIES AND POSITION PAPERS FOR USWG, PERSONALLY ATTENDING OR PROVIDING REPRESENTATION AT FRC MEETINGS, AND PROVIDING PARTICIPATION IN USWG TASK FORCES. DIRECTS THE MONITORING AND EVALUATION OF THE PROGRESS AND ACHIEVEMENTS OF ALL TEN REGIONAL COUNCILS."

EFFECTIVE FEBRUARY 16, 1975, THE SUNDAY AFTER IT WAS CLASSIFIED, MR. TYBURSKI RECEIVED A NONCOMPETITIVE TEMPORARY PROMOTION TO THIS GRADE GS 15 POSITION WHICH LASTED TO JUNE 15, 1975. APPARENTLY THE PROMOTION WAS TERMINATED AT THAT TIME BECAUSE OF THE CIVIL SERVICE COMMISSION (CSC) REQUIREMENT THAT TEMPORARY PROMOTIONS MADE NONCOMPETITIVELY BE LIMITED TO 120 DAYS. SEE FEDERAL PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 4, PARAGRAPHS 4-3E AND 4-4B, OCTOBER 25, 1973. THE POSITION ITSELF WAS CANCELLED ON JUNE 13, 1975.

APPROXIMATELY 8 MONTHS LATER, ON FEBRUARY 12, 1976, THE DAY AFTER GS 16 POSITION WAS CANCELLED, ANOTHER GRADE GS-15 POSITION WAS CLASSIFIED WITH THE SAME TITLE AND OCCUPATIONAL SERIES AS THE PRIOR ONE - SPECIAL ASSISTANT FOR FIELD COORDINATION GS-301-15 - BUT WITH A NEW NUMBER, CS 0696. IT WAS DESIGNATED AS A NEW POSITION BUT EXCEPT FOR A SLIGHT DIFFERENCE IN LANGUAGE IN ONE SENTENCE, THE DESCRIPTIONS FOR THE TWO GRADES GS-15 POSITIONS ARE IDENTICAL. ON JUNE 20, 1976, MORE THAN 4 MONTHS AFTER IT WAS CLASSIFIED, MR. TYBURSKI WAS PERMANENTLY PROMOTED COMPETITIVELY TO THE SECOND GRADE GS-15 POSITION.

MR. TYBURSKI CONTENDS THAT HE PERFORMED THE DUTIES OF SPECIAL ASSISTANT FOR FIELD COORDINATION, CLASSIFIED IN GRADE GS-16 AND 15, FROM AUGUST 19, 1974, WHEN HE WAS DESIGNATED ACTING DIRECTOR TO THE DATE OF HIS PERMANENT PROMOTION, JUNE 20, 1976, AND THAT HE IS ENTITLED TO BACK PAY FOR THAT PORTION OF THIS 22-MONTH PERIOD FOR WHICH HE HAS NOT ALREADY BEEN COMPENSATED. THE DEPARTMENT OF LABOR HAS AGREED THAT IN ADDITION TO THE TEMPORARY PROMOTION MR. TYBURSKI WAS GRANTED FROM FEBRUARY 16 TO JUNE 15, 1975, HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION BEGINNING ON THE 121ST DAY AFTER THE DATE OF CLASSIFICATION OF THE SECOND GRADE GS-15 POSITION, FEBRUARY 12, 1976, TO THE DATE OF HIS PERMANENT PROMOTION, JUNE 20, 1976. THE DEPARTMENT HAS DENIED HIS CLAIM FOR THE PERIOD FROM AUGUST 19, 1974, TO THE DATE OF HIS TEMPORARY PROMOTION, FEBRUARY 16, 1975, ON THE BASIS THAT MR. TYBURSKI DID NOT MEET THE REQUIREMENTS FOR PROMOTION TO GRADE GS-16. THE DEPARTMENT HAS ALSO DENIED HIS CLAIM FOR THE PERIOD FROM THE DATE THE FIRST GRADE GS 15 WAS CANCELLED, JUNE 15, 1975, TO THE DATE THE SECOND GRADE GS-15 WAS CLASSIFIED, FEBRUARY 12, 1976, ON THE GROUND THAT NO CLASSIFIED POSITION EXISTED.

THE DISPOSITION MR. TYBURSKI'S CLAIM WILL BE GOVERNED BY TURNER CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED 56 ID. 427 (1977) AND SOME OF THE IMPLEMENTING DECISIONS. TURNER-CALDWELL HOLDS THAT IF AN EMPLOYEE IS DETAILED TO A POSITION CLASSIFIED IN HIGHER GRADE THAN HIS OR HER ASSIGNED GRADE FOR A PERIOD IN EXCESS OF 120 DAYS WITHOUT CSC APPROVAL, HE OR SHE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR SUCH PERIOD PROVIDED THE EMPLOYEE WOULD HAVE MET ALL QUALIFICATIONS AND OTHER REQUIREMENTS FOR SUCH A PROMOTION. IMPLEMENTING DECISIONS HOLD THAT WHEN AN EMPLOYEE IS DETAILED FOR A PERIOD IN EXCESS OF 120 DAYS WITHOUT CSC APPROVAL TO A POSITION CLASSIFIED TWO OR MORE GRADES HIGHER THAN HIS OR HER ASSIGNED GRADE FOR WHICH HE OR SHE DID NOT MEET ALL QUALIFICATIONS AND OTHER APPLICABLE REQUIREMENTS, THE EMPLOYEE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR SUCH PERIOD TO THE HIGHEST INTERVENING GRADE FOR WHICH HE OR SHE DID MEET ALL QUALIFICATIONS AND OTHER APPLICABLE REQUIREMENTS. EVELYN M. TAYLOR, B-195296, JANUARY 9, 1980; MARIE L. LEBER, B-194258, DECEMBER 27, 1979.

IN BOTH OF THESE SITUATIONS THE BURDEN IS ON THE CLAIMANT TO PROVE BEYOND A REASONABLE DOUBT THAT HE OR SHE ASSUMED THE FULL RANGE OF DUTIES, AUTHORITY, AND RESPONSIBILITY SET FORTH IN THE DESCRIPTION OF THE POSITION TO WHICH THE DETAIL IS ALLEGED. YERNOW P. HUMPHRIES, B-194890, MARCH 28, 1980; GEORGE QUINTAL, B-194745, APRIL 8, 1980; 4 C.F.R. SEC. 31.7. IN THE FORMER SITUATION THE CLAIMANT MUST HAVE MET ALL QUALIFICATIONS AND OTHER REQUIREMENTS FOR PROMOTION TO THE POSITION TO WHICH THE DETAIL IS ALLEGED. IN THE LATTER SITUATION, THE CLAIMANT MUST HAVE MET ALL QUALIFICATION AND OTHER REQUIREMENTS FOR PROMOTION TO THE INTERVENING POSITION. THUS, AN EMPLOYEE IN GRADE GS-14 WHO ESTABLISHES THAT HE OR SHE WAS DETAILED TO A POSITION CLASSIFIED IN GRADE GS-16, A SUPER GRADE POSITION REQUIRING CSC APPROVAL OF APPOINTEES UNDER 5 U.S.C. SEC. 3224, IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY TO GRADE GS-15 IF HE MET ALL QUALIFICATIONS AND OTHER REQUIREMENTS FOR PROMOTION TO GRADE GS-15.

WE FIRST CONSIDER THE PERIOD FROM THE DATE MR. TYBURSKI WAS DESIGNATED ACTING DIRECTOR OF THE FIELD COORDINATION STAFF, AUGUST 19, 1974, TO FEBRUARY 16, 1975, THE DATE HE WAS NONCOMPETITIVELY PROMOTED TEMPORARILY TO THE FIRST GRADE GS-15 POSITION. THROUGHOUT THIS PERIOD THE GRADE GS-16 CONTINUED IN EXISTENCE BUT THERE WAS NO CLASSIFIED POSITION IN GRADE GS- 15. THEREFORE, IF DURING THIS PERIOD MR. TYBURSKI PERFORMED ALL OF THE SIGNIFICANT DUTIES, ASSUMED ALL OF THE SIGNIFICANT RESPONSIBILITIES, AND EXERCISED ALL OF THE SIGNIFICANT AUTHORITY SET FORTH IN THE DESCRIPTION FOR THE GRADE GS-16 HE WOULD BE ENTITLED UNDER THE ABOVE CITED AUTHORITIES TO A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-15 AND BACK PAY BEGINNING ON THE 121ST DAY FOLLOWING HIS DESIGNATION AS ACTING DIRECTOR AND CONTINUING TO THE DATE OF HIS TEMPORARY PROMOTION. HOWEVER, THERE IS A SUBSTANTIAL QUESTION AS TO WHETHER THIS WAS IN FACT THE CASE.

AS HAS BEEN PREVIOUSLY INDICATED THERE ARE DIFFERENCES BETWEEN THE DESCRIPTIONS FOR THE GRADES GS-16 AND GS-15 POSITIONS PARTICULARLY WITH REGARD TO THE TWO FUNCTIONS PREVIOUSLY IDENTIFIED. NEITHER OF THESE FUNCTIONS IS CONTAINED IN THE DESCRIPTION OF THE DUTIES AND RESPONSIBILITIES MR. TYBURSKI WAS CERTIFIED TO BE ACTUALLY PERFORMING SOME 6 MONTHS AFTER HE WAS DESIGNATED ACTING DIRECTOR. WHILE WE CAN NOT SAY WHAT WEIGHT WAS GIVEN THESE FUNCTIONS BY CSC IN CLASSIFYING THE GRADE GS- 16 POSITION THEY WERE AN INTEGRAL PART OF THAT POSITION AND THEIR OMMISSION FROM THE DESCRIPTION FOR THE GRADE GS-15 POSITION RAISES A PRESUMPTION THAT MR. TYBURSKI DID NOT ASSUME THE FULL RANGE OF DUTIES, RESPONSIBILITIES, AND AUTHORITY SPECIFIED IN THE DESCRIPTION OF THE GRADE GS-16 POSITION. ALTHOUGH DOCUMENTS IN THE FILE INDICATE THAT ANOTHER EMPLOYEE WHO MAY HAVE BEEN A SUBORDINATE OF MR. TYBURSKI SERVED AS THE REPRESENTATIVE ON THE UNDER SECRETARIES' WORK GROUP FOR AT LEAST A PART OF THE TIME IN QUESTION, WE HAVE FOUND NO EVIDENCE THAT THE DUTIES PERFORMED IN CONNECTION WITH THIS FUNCTION WERE OF THE SCOPE OR LEVEL CONTEMPLATED IN THE DESCRIPTION FOR THE GRADE GS-16 POSITION.

ACCORDINGLY, SINCE MR. TYBURSKI HAS NOT MET THE BURDEN OF PROVING HIS CLAIM, WE ARE LEFT WITH THE CONCLUSION THAT WHILE HE MAY HAVE PERFORMED DUTIES OF A HIGHER GRADE THAN THE GRADE OF THE POSITION TO WHICH HE WAS OFFICIALLY ASSIGNED DURING THIS PERIOD THESE DUTIES WERE SOMETHING LESS THAN THE FULL RANGE OF THE DUTIES OF THE GRADE GS-16 POSITION AND THEY WERE IN FACT UNCLASSIFIED DUTIES. THEREFORE, SINCE MR. TYBURSKI WAS NOT DETAILED TO A POSITION CLASSIFIED IN HIGHER GRADE, A BASIC REQUIREMENT FOR RELIEF UNDER THE TURNER-CALDWELL LINE OF DECISIONS, FROM AUGUST 19, 1974, TO FEBRUARY 16, 1975, HIS CLAIM FOR BACK PAY FOR THAT PERIOD MAY NOT ALLOWED. CANNON R. ODOM, B-196824, MAY 12, 1980.

THERE REMAINS TO BE CONSIDERED THE PERIOD BETWEEN THE CANCELLATION OF THE GRADE GS-15 POSITION EFFECTIVE JUNE 15, 1975, AND ITS REESTABLISHMENT BY THE CLASSIFICATION OF A VIRTUALLY IDENTICAL POSITION ON FEBRUARY 12, 1976. ALTHOUGH THE GRADE GS-16 POSITION WAS IN EXISTENCE THROUGHOUT THIS PERIOD IT IS OUR VIEW, AS WE HAVE PREVIOUSLY INDICATED, THAT MR. TYBURSKI WAS NOT DETAILED TO IT WITHIN THE PURVIEW OF OUR TURNER-CALDWELL DECISIONS. MOREOVER, AS HAS BEEN SET FORTH IN THE FOREGOING, THE ESTABLISHED RULE IS THAT TO BE ENTITLED TO RELIEF UNDER THESE DECISIONS AN EMPLOYEE MUST BE DETAILED TO A CLASSIFIED POSITION.

HOWEVER, IN ORIN T. HANSON, B-196405, APRIL 4, 1980, AN EMPLOYEE HAD BEEN DETAILED TO A HIGHER-GRADE POSITION FOR ABOUT 14 MONTHS WHEN IT WAS ABOLISHED THROUGH ADMINISTRATIVE ERROR AND WAS TECHNICALLY OUT OF EXISTENCE FOR MORE THAN 4 MONTHS BEFORE IT WAS REESTABLISHED. THE EMPLOYEE CONTINUED TO PERFORM THE DUTIES OF THIS POSITION THROUGHOUT THE PERIOD IT WAS OUT OF EXISTENCE AND FOR APPROXIMATELY 10 MORE MONTHS AFTER IT WAS REESTABLISHED. IT WAS HELD IN THESE CIRCUMSTANCES THAT THE EMPLOYEE COULD BE CONSIDERED TO HAVE BEEN CONTINUOUSLY DETAILED TO THE HIGHER-GRADE POSITION FOR THE ENTIRE 28-MONTH PERIOD.

THE CASE BEFORE US PRESENTS AN ANALOGOUS SITUATION IN OUR VIEW. MR. TYBURSKI CONTENDS THAT HE SERVED AS ACTING SPECIAL ASSISTANT FOR FIELD COORDINATION FOR THE 22-MONTH PERIOD FROM THE DATE HE WAS DESIGNATED AS ACTING DIRECTOR OF THE FIELD COORDINATION STAFF ON AUGUST 19, 1974, TO THE DATE OF HIS PERMANENT PROMOTION TO THE POSITION OF SPECIAL ASSISTANT FOR FIELD COORDINATION GS-301-15, JUNE 20, 1976. THE RECORD TENDS TO SUPPORT THIS CONTENTION AND IT IS NOT DISPUTED BY THE DEPARTMENT. THE DUTIES HE WAS PERFORMING IN THIS CAPACITY WERE CLASSIFIED AS SPECIAL ASSISTANT FOR FIELD COORDINATION GS-301-15 ON FEBRUARY 14, 1975. THE REASON FOR THE CANCELLATION OF THIS POSITION AT THE TERMINATION OF THE NONCOMPETITIVE TEMPORARY PROMOTION IS NOT STATED BUT APPEARS TO HAVE BEEN CONNECTED WITH THE CSC PROHIBITION AGAINST EXTENDING SUCH PROMOTIONS BEYOND 120 DAYS. ANY EVENT, IT SEEMS CLEAR THAT THE REASON FOR THE CANCELLATION WAS NOT THE LACK OF NEED FOR THE POSITION SINCE IT WAS KNOWN THAT IN REALITY IT WOULD CONTINUE TO EXIST AND THAT MR. TYBURSKI WOULD CONTINUE TO DISCHARGE ITS DUTIES AND RESPONSIBILITIES. ALTHOUGH THE POSITION TECHNICALLY CEASED TO EXIST FOR APPROXIMATELY 8 MONTHS AND TECHNICALLY MR. TYBURSKI WAS PERFORMING UNCLASSIFIED DUTIES, HE DID IN FACT CONTINUE TO PERFORM DUTIES THE NATURE AND LEVEL OF WHICH HAD BEEN DETERMINED BY THE CLASSIFICATION OF THE CANCELLED POSITION, AS EVIDENCED BY THE REESTABLISHMENT OF THAT POSITION WITH THE SAME TITLE, OCCUPATIONAL SERIES, AND GRADE AND WITH VIRTUALLY THE IDENTICAL POSITION DESCRIPTION. IN THIS SITUATION, AS IN HANSON, SUPRA, IT IS OUR OPINION THAT SUBSTANCE RATHER THAN FORM SHOULD CONTROL. ACCORDINGLY, WE FIND THAT MR. TYBURSKI SHOULD BE CONSIDERED TO HAVE BEEN CONTINUOUSLY DETAILED TO THE GRADE GS-15 POSITION FROM THE DAY AFTER HIS TEMPORARY PROMOTION ENDED, JUNE 16, 1975, TO THE DATE OF HIS PERMANENT PROMOTION TO THAT POSITION, JUNE 20, 1976, AND THAT HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY BEGINNING ON THE 121ST DAY OF THAT DETAIL.

MR. TYBURSKI'S CLAIM IS TO BE SETTLED IN ACCORDANCE WITH THE FOREGOING.