B-200403, APR 27, 1981

B-200403, APR 27, 1981

DIGEST: 1. EMPLOYEE WHO WAS DETAILED FROM GRADE GS-9 TO GRADE GS-11 POSITION FOR 19 MONTHS, RECEIVED RETROACTIVE TEMPORARY PROMOTION UNDER OUR TURNER- CALDWELL DECISIONS. EMPLOYEE WAS THEN PROMOTED TO GRADE GS 10 POSITION BUT CLAIMS PROMOTION TO GRADE GS-11. CLAIM IS DENIED SINCE PROMOTIONS ARE DISCRETIONARY IN ABSENCE OF NONDISCRETIONARY POLICY OR REGULATION GOVERNING PROMOTIONS. 2. EMPLOYEE WHO WAS DETAILED FROM GRADE GS-9 TO GRADE GS-11 POSITION CLAIMS HE CONTINUED TO PERFORM GRADE GS-11 DUTIES AFTER GRADE GS-10 POSITION WAS CLASSIFIED AND HE WAS PROMOTED TO IT. CLAIM IS DENIED SINCE EMPLOYEE'S EVIDENCE DOES NOT SUPPORT HIS CLAIM.

HAROLD LOWE - CLAIM FOR RETROACTIVE PROMOTION:

THE ISSUE IN THIS DECISION IS WHETHER AN EMPLOYEE WHO WAS DETAILED FROM A GRADE GS-9 POSITION TO A GRADE GS-11 POSITION AND RECEIVED A RETROACTIVE TEMPORARY PROMOTION IS ENTITLED TO A CONTINUATION OF THAT TEMPORARY PROMOTION AFTER HE IS PROMOTED TO A NEWLY-ESTABLISHED INTERVENING GRADE GS -10 POSITION OR TO A PERMANENT PROMOTION TO THE GRADE GS-11 POSITION RATHER THAN TO THE GRADE GS-10 POSITION. WE HOLD THAT BASED ON THE RECORD BEFORE US IT APPEARS THAT THE EMPLOYEE'S DETAIL TO THE GRADE GS-11 POSITION ENDED UPON HIS PROMOTION TO THE GRADE GS-10 POSITION AND HE HAS NO ENTITLEMENT TO PROMOTION TO THE GRADE GS-11 POSITION.

THIS DECISION IS IN RESPONSE TO THE APPEAL BY MR. HAROLD LOWE OF OUR CLAIMS DIVISION SETTLEMENT DATED AUGUST 28, 1979, DENYING IN PART HIS CLAIM FOR ADDITIONAL COMPENSATION INCIDENT TO HIS EXTENDED DETAIL TO A GS- 11 POSITION AND HIS SUBSEQUENT PROMOTION TO A GS-10 POSITION.

MR. LOWE WAS EMPLOYED BY THE DEPARTMENT OF THE NAVY AS AN ENGINEERING TECHNICIAN, GRADE GS-9, WHEN HE WAS DETAILED ON NOVEMBER 18, 1974, TO AN ENGINEERING TECHNICIAN POSITION, GRADE GS-11. ON MAY 20, 1976, THE POSITION DESCRIPTION FOR THE GRADE GS-11 POSITION WAS RESTATED AND RENUMBERED AND A NEW POSITION WAS CLASSIFIED AT THE GRADE GS-10 LEVEL. MR. LOWE WAS SUBSEQUENTLY PROMOTED TO THE GRADE GS-10 POSITION ON JULY 4, 1976.

OUR CLAIMS DIVISION HELD THAT BASED UPON OUR TURNER-CALDWELL DECISIONS MR. LOWE WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-11 BEGINNING THE 121ST DAY OF HIS EXTENDED DETAIL, MARCH 18, 1975, AND ENDING ON JULY 4, 1976. TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). HOWEVER, ONCE THE GRADE GS-10 POSITION WAS CLASSIFIED AND MR. LOWE WAS PROMOTED TO IT, HIS ENTITLEMENT TO PAY AT THE GRADE GS-11 LEVEL ENDED. MR. LOWE WAS FOUND TO BE ENTITLED TO THE TEMPORARY PROMOTION FROM GRADE GS-9 TO GS-11 DESPITE THE WHITTEN AMENDMENT TIME-IN-GRADE RESTRICTIONS (SEE 5 U.S.C. SEC. 3101 NOTE) SINCE THERE WAS AT THAT TIME NO POSITION AT THE INTERVENING GRADE (GS-10) IN THE NORMAL LINE OF PROMOTION. SEE 5 C.F.R. SEC. 300.603(B) (1975).

ON APPEAL MR. LOWE ARGUES THAT HE WAS ORIGINALLY DENIED PROMOTION TO GRADE GS-11 BY THE NAVY ON THE BASIS OF THE WHITTEN AMENDMENT. SINCE OUR OFFICE HAS DETERMINED THAT THE WHITTEN AMENDMENT RESTRICTIONS WERE NOT APPLICABLE, MR. LOWE SEEKS A RETROACTIVE PERMANENT PROMOTION TO GRADE GS- 11 FROM MARCH 18, 1975, OR AT LEAST FROM JULY 4, 1976, ON THE BASIS THAT THE TWO POSITION DESCRIPTIONS FOR THE GS-11 POSITIONS WERE IDENTICAL AND THAT HE CONTINUED TO PERFORM AT THE GRADE GS-11 LEVEL AFTER HIS PROMOTION TO GRADE GS-10. MR. LOWE ALSO ARGUES THAT OUR OFFICE HAS FAILED TO INVESTIGATE WHETHER THE NAVY HAS A CAREER PROMOTION PLAN WHICH MIGHT SUPPORT HIS CLAIM FOR A RETROACTIVE PROMOTION.

THE GENERAL RULE IS THAT FEDERAL EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. UNITED STATES V. TESTAN, 424 U. S. 392 (1976); DIANISH V. UNITED STATES, 183 CT.CL. 702 (1968). THE GRANTING OF PROMOTIONS FROM GRADE TO GRADE IS A DISCRETIONARY MATTER PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED, AND SALARY INCREASES MAY NOT ORDINARILY BE MADE RETROACTIVE. SEE 54 COMP.GEN. 263 (1974); 40 COMP.GEN. 207 (1960); AND 39 COMP.GEN. 583 (1960). HOWEVER, RETROACTIVE ADJUSTMENTS OF SALARY RATES MAY BE MADE WHERE AN ADMINISTRATIVE OR CLERICAL ERROR (1) PREVENTED A PERSONNEL ACTION FROM TAKING EFFECT AS ORIGINALLY INTENDED, (2) DEPRIVED AN EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR (3) WOULD RESULT IN THE FAILURE TO CARRY OUT A NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY IF NOT ADJUSTED RETROACTIVELY. SEE 55 COMP.GEN. 42 (1975); 54 COMP.GEN. 888 (1975); AND DECISIONS CITED THEREIN.

WITH REGARD TO MR. LOWE'S ENTITLEMENT TO A RETROACTIVE PERMANENT PROMOTION TO GRADE GS-11 ON THIS THEORY, WE FIND NOTHING IN THE RECORD WHICH WOULD PROVIDE A LEGAL BASIS FOR SUCH PROMOTION. IT HAS NOT BEEN SHOWN THAT THE NAVY HAD A NONDISCRETIONARY PROMOTION POLICY OR CAREER PROMOTION PLAN REQUIRING MR. LOWE'S PROMOTION UPON A CERTAIN DATE. ALTHOUGH MR. LOWE CONTENDS THAT OUR OFFICE SHOULD HAVE INVESTIGATED THIS ISSUE, WE POINT OUT THAT CLAIMS ARE SETTLED ON THE BASIS OF THE WRITTEN RECORD ONLY AND THE BURDEN OF PROOF IS ON THE CLAIMANT TO ESTABLISH THE LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. SEE 4 C.F.R. SEC. 31.7 (1980).

THE FACT THAT THE WHITTEN AMENDMENT RESTRICTIONS DID NOT PRECLUDE MR. LOWE'S PROMOTION DID NOT BY ITSELF CREATE IN HIM A RIGHT TO PROMOTION. DISCUSSED ABOVE, PROMOTIONS ARE DISCRETIONARY IN THE ABSENCE OF A NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY GOVERNING PROMOTIONS.

MR. LOWE ARGUES THAT BOTH POSITION DESCRIPTIONS FOR THE GRADE GS-11 POSITIONS ARE IDENTICAL, AND THAT THEREFORE HE IS ENTITLED TO RETROACTIVE PERMANENT PROMOTION TO THE GRADE GS-11 POSITION AT LEAST FROM JULY 4, 1976, WHEN HE RECEIVED A PERMANENT PROMOTION TO GRADE GS 10 AND HIS TEMPORARY PROMOTION TO GS-11 TERMINATED. HOWEVER, AS NOTED ABOVE, AN EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH APPOINTED UNLESS AND UNTIL THE POSITION IS RECLASSIFIED UPWARD AND THE EMPLOYEE IS THEN PROMOTED. SEE MARION MCCALEB, 55 COMP.GEN. 515 (1975). IF, UPON HIS PROMOTION TO GRADE GS-10, MR. LOWE BELIEVED HE WAS PERFORMING HIGHER GRADED DUTIES, HE SHOULD HAVE PURSUED A REMEDY THROUGH A CLASSIFICATION APPEAL TO HIS AGENCY OR THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT) UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5112 AND 5 C.F.C. SEC. 511.601, ET SEQ.

FINALLY, IT MIGHT BE ARGUED THAT ALTHOUGH MR. LOWE WAS PROMOTED TO THE GRADE GS-10 POSITION ON JULY 4, 1976, HIS DETAIL TO THE GRADE GS-11 POSITION CONTINUED AND HE IS ENTITLED TO A CONTINUATION OF HIS RETROACTIVE TEMPORARY PROMOTION UNDER OUR TURNER-CALDWELL DECISIONS. THE GRADE GS-10 POSITION WAS A DEVELOPMENTAL POSITION FOR THE RESTATED GRADE GS-11 POSITION. IT REQUIRED THE PERFORMANCE OF THE SAME OR SUBSTANTIALLY THE SAME DUTIES AS THOSE OF THE GRADE GS-11 POSITION, BUT UNDER CLOSER SUPERVISION. HOWEVER, THE NAVY DOES NOT CONCEDE THAT MR. LOWE PERFORMED THE FULL SCOPE OF DUTIES OF THE GRADE GS-11 POSITION AFTER HIS PROMOTION TO THE GRADE GS-10 POSITION ON JULY 4, 1976, AND MR. LOWE HAS NOT SUBMITTED WHAT WE BELIEVE TO BE SUFFICIENT EVIDENCE TO REFUTE THE NAVY'S POSITION.

WHERE THE TWO POSITIONS IN QUESTION (GRADES GS-10 AND GS-11) HAVE SUBSTANTIALLY SIMILAR DUTIES, WE BELIEVE ADDITIONAL EVIDENCE IS NECESSARY TO PROVE THE CLAIM BEYOND BRIEF STATEMENTS SUBMITTED BY MR. LOWE FROM A SUPERVISOR AND CO-WORKER THAT HE "ACTED AS ASSISTANT SUPERVISOR." ALLOW MR. LOWE'S CLAIM BASED UPON THIS EVIDENCE WOULD, IN ESSENCE, OVERTURN THE AGENCY'S DETERMINATION TO CLASSIFY A DEVELOPMENTAL POSITION AT THE GRADE GS-10 LEVEL AND PROMOTE MR. LOWE TO THAT POSITION. FOR ENTITLEMENT TO A RETROACTIVE PROMOTION AND BACK PAY UNDER TURNER-CALDWELL, AN EMPLOYEE HAS THE BURDEN OF PROVING BEYOND REASONABLE DOUBT THAT HE PERFORMED THE FULL RANGE OF DUTIES SET FORTH IN THE DESCRIPTION OF THE POSITION TO WHICH THE DETAIL IS ALLEGED. IT IS NOT SUFFICIENT TO SHOW THAT HE PERFORMED SOME OF THE DUTIES OF THE HIGHER GRADE POSITION. EBELARDO SALAZAR, B-197727, FEBRUARY 26, 1981; AND GILBERT J. BREER, B-195583, DECEMBER 3, 1980. THE EVIDENCE SUBMITTED BY MR. LOWE DOES NOT MEET THIS BURDEN.

ACCORDINGLY, WE SUSTAIN OUR CLAIMS DIVISION'S DENIAL OF MR. LOWE'S CLAIM FOR A RETROACTIVE PROMOTION.