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B-196633, JAN 4, 1979

B-196633 Jan 04, 1979
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DIGEST: EMPLOYEE CLASSIFIED AS GRADE GS-7 ALLEGES THAT HE PERFORMED HIGHER GRADE GS-9 DUTIES FROM 1974 TO 1978 FOR WHICH HE WAS NOT PAID. HIS CLAIM FOR RETROACTIVE PROMOTION WITH BACK PAY IS DENIED. RECORD FAILS TO SHOW HE WAS DETAILED TO ESTABLISHED HIGHER-GRADED POSITION. CLAIMS PRESENTED TO GAO ARE CONSIDERED ON BASIS OF WRITTEN RECORD AND BURDEN OF PROOF IS ON CLAIMANTS TO ESTABLISH LIABILITY OF UNITED STATES. ADAMS - CLAIM FOR RETROACTIVE PROMOTION AND BACK PAY: THIS DECISION IS ON THE APPEAL OF MR. HE CONTENDS HE IS ENTITLED TO A TEMPORARY PROMOTION AND BACK PAY ON THE BASIS OF OUR TURNER- CALDWELL DECISIONS. WHICH HELD THAT EMPLOYEES ARE ENTITLED TO TEMPORARY PROMOTIONS FOR EXTENDED DETAILS TO ESTABLISHED CLASSIFIED HIGHER-LEVEL POSITIONS.

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B-196633, JAN 4, 1979

DIGEST: EMPLOYEE CLASSIFIED AS GRADE GS-7 ALLEGES THAT HE PERFORMED HIGHER GRADE GS-9 DUTIES FROM 1974 TO 1978 FOR WHICH HE WAS NOT PAID. HIS CLAIM FOR RETROACTIVE PROMOTION WITH BACK PAY IS DENIED. RECORD FAILS TO SHOW HE WAS DETAILED TO ESTABLISHED HIGHER-GRADED POSITION. CLAIMS PRESENTED TO GAO ARE CONSIDERED ON BASIS OF WRITTEN RECORD AND BURDEN OF PROOF IS ON CLAIMANTS TO ESTABLISH LIABILITY OF UNITED STATES.

OSCAR G. ADAMS - CLAIM FOR RETROACTIVE PROMOTION AND BACK PAY:

THIS DECISION IS ON THE APPEAL OF MR. OSCAR G. ADAMS OF OUR CLAIMS DIVISION SETTLEMENT DATED AUGUST 23, 1979 (Z-2811309). THE SETTLEMENT DENIED HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY. FOR THE REASONS STATED BELOW WE SUSTAIN THE SETTLEMENT.

MR. ADAMS OCCUPIED A GS-7 POSITION CLASSIFIED AS A CIVIL ENGINEERING TECHNICIAN AT THE MARINE CORPS AIR STATION, BEAUFORT, SOUTH CAROLINA. STATES THAT HE PERFORMED THE HIGHER-GRADED DUTIES OF A GS-9 DURING THE PERIOD AUGUST 26, 1974, TO JANUARY 1, 1978. THUS, HE CONTENDS HE IS ENTITLED TO A TEMPORARY PROMOTION AND BACK PAY ON THE BASIS OF OUR TURNER- CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975) AND 56 ID. 427 (1977), WHICH HELD THAT EMPLOYEES ARE ENTITLED TO TEMPORARY PROMOTIONS FOR EXTENDED DETAILS TO ESTABLISHED CLASSIFIED HIGHER-LEVEL POSITIONS, PROVIDED THEY MEET CERTAIN REQUIREMENTS.

THE RECORD DOES INDICATE THAT THERE WAS A GS-9 POSITION IN EFFECT AT THE MARINE CORPS AIR STATION FOR A CIVIL ENGINEERING TECHNICIAN (DRAFTING). HOWEVER, THAT POSITION WAS SUPERSEDED ON AUGUST 7, 1974. IT IS UNKNOWN WHAT POSITION SUPERSEDED IT AND THE GS-7 POSITION CONTAINS A DATE OF FEBRUARY 24, 1977. THUS, THERE IS SOME DOUBT IN THE RECORD AS TO WHETHER OR NOT THERE WAS AN ESTABLISHED HIGHER-GRADED CLASSIFIED POSITION TO WHICH MR. ADAMS COULD HAVE BEEN ASSIGNED. SEE GLEN E. SILVEY, B-192642, MARCH 1, 1979.

ALL CLAIMS ARE CONSIDERED ON THE BASIS OF THE WRITTEN RECORD, AND THE BURDEN OF PROOF IS ON THE CLAIMANTS TO ESTABLISH THE LIABILITY OF THE UNITED STATES AND THE CLAIMANTS' RIGHT TO PAYMENT. 4 C.F.R. SEC. 31.7; RONALD J. BEACH, B-195480, NOVEMBER 8, 1979. WITH REGARD TO WHAT CONSTITUTES ACCEPTABLE PROOF OF A DETAIL, PARAGRAPH 8F OF CIVIL SERVICE COMMISSION BULLETIN 300-40, STATES THAT ACCEPTABLE DOCUMENTATION INCLUDES OFFICIAL PERSONNEL DOCUMENTS OR OFFICIAL MEMORANDA, A DECISION UNDER ESTABLISHED GRIEVANCE PROCEDURES, OR A WRITTEN STATEMENT FROM THE PERSON WHO SUPERVISED THE EMPLOYEE DURING THE PERIOD IN QUESTION OR OTHER MANAGEMENT OFFICIAL FAMILIAR WITH THE WORK, CERTIFYING THAT TO HIS OR HER PERSONAL KNOWLEDGE THE EMPLOYEE PERFORMED THE DUTIES OF THE PARTICULAR ESTABLISHED CLASSIFIED POSITION FOR THE PERIOD CLAIMED.

THERE ARE NO OFFICIAL RECORDS OF ANY DETAIL OF MR. ADAMS TO A HIGHER GRADED CLASSIFIED POSITION. HE HAS MERELY STATED THAT HE PERFORMED SUCH DUTIES. HE HAS, THEREFORE, FAILED TO MEET THE BURDEN OF PROOF NECESSARY TO ESTABLISH LIABILITY ON THE PART OF THE UNITED STATES.

ACCORDINGLY, WE SUSTAIN OUR CLAIMS DIVISION DETERMINATION DENYING MR. ADAMS' CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.

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