B-201349-OM, FEB 25, 1981

B-201349-OM, FEB 25, 1981

DIGEST

COMPTROLLER GENERAL:

WE REFER TO THE CLAIM OF MR. THOMAS M. GEMPP FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY BECAUSE OF AN OVERLONG DETAIL TO A HIGHER GRADE POSITION.

IN DECEMBER 1975 MANY GS-5 FIREFIGHTER POSITIONS AT A NAVAL BASE WERE DOWNGRADED. BECAUSE OF REQUIREMENTS IN FPM CHAPTER 351, SUBCHAPTER S2, PARAGRAPHS S2-1 AND S2-6, RIF PROCEDURES WERE USED, ALTHOUGH IT DOES NOT APPEAR THAT THERE WAS ANY DISPARATE EFFECT ON THE EMPLOYEES INVOLVED BECAUSE OF THE DOWNGRADING ITSELF. SOME EMPLOYEES TRANSFERRED TO OTHER POSITIONS TO AVOID BEING DOWNGRADED, AND RIF RETENTION STANDINGS MAY HAVE BEEN USED TO SET PRIORITIES ON WHO WOULD BE ELIGIBLE FOR OUTPLACEMENT FIRST.

A CLASSIFICATION APPEAL WAS FILED, AND CSC EVENTUALLY DETERMINED THAT 16 OF THE APPROXIMATELY 40 POSITIONS SHOULD NOT HAVE BEEN DOWNGRADED. (THESE WERE THE POSITIONS LOCATED IN TWO OF THE FIRE STATIONS.) RETROACTIVE CORRECTION OF THE ERRONEOUS DOWNGRADING WAS ACCOMPLISHED THROUGH RETROACTIVE CORRECTION OF THE RIF ACTION, WITH THE 16 EMPLOYEES WITH HIGHEST RETENTION STANDING BEING GIVEN RETROACTIVE RESTORATION TO THE GS-5 POSITIONS. ALTHOUGH MR. GEMPP HAD BEEN EMPLOYED IN ONE OF THE STATIONS WHOSE POSITIONS SHOULD NOT HAVE BEEN DOWNGRADED, HE WAS NOT ONE OF THE TOP 16. (AT LEAST SEVEN OTHER EMPLOYEES, NONE OF WHOM HAS APPARENTLY FILED A CLAIM, ARE SIMILARLY SITUATED.) MR. GEMPP THUS RECEIVED NO BENEFIT FROM THE RETROACTIVE CORRECTION OF THE CLASSIFICATION EVEN THOUGH HE OCCUPIED ONE OF THE POSITIONS INVOLVED.

THERE ARE THREE POSSIBLE SOLUTIONS FOR MR. GEMPP (AND PRESUMABLY FOR THE OTHER 7):

(1) RETROACTIVE ENTITLEMENT TO GS-5 PAY FOR THE PERIOD FROM THE INITIAL DOWNGRADING UP TO DATE OF TRANSFER TO A PROPERLY-CLASSIFIED GS 4 POSITION.

(2) RETROACTIVE TEMPORARY PROMOTION ON THE 121ST DAY AFTER INITIAL DOWNGRADING, ON THE BASIS OF A CONSTRUCTIVE "DETAIL" TO THE GS-5 POSITION.

(3) NO ENTITLEMENT, ON GROUNDS THAT IF RIF PROCEDURES HAD BEEN PROPERLY APPLIED AT THE TIME HE WOULD HAVE BEEN PROPERLY DOWNGRADED. THE LAST SOLUTION IS PROBABLY THE LEAST TENABLE. THE FIRST POSSIBILITY IS MOST PLAUSIBLE SINCE HE WAS THE OFFICIAL INCUMBENT OF ONE OF THE GS 5 POSITIONS, BUT TOSSES ASIDE THE POINT THAT HE WOULD NOT HAVE BEEN IF PROPER RIF PROCEDURES HAD BEEN USED AT THE TIME. THE SECOND POSSIBILITY IGNORES FACT THAT HE WAS STILL THE OFFICIAL INCUMBENT OF A GS-5 POSITION (EVEN THOUGH "ERRONEOUSLY" SO) FOR THE ENTIRE PERIOD, NOT JUST DETAILED TO IT.

ACCORDINGLY, WE ARE FORWARDING THE FILE TO YOU FOR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE RECORD SHOWS THAT MR. GEMPP HAD BEEN DULY APPOINTED TO THE POSITION OF FIREFIGHTER (STRUCTURAL), GRADE GS-5, AT THE NAVAL EDUCATION AND TRAINING CENTER, NEWPORT, RHODE ISLAND. EFFECTIVE DECEMBER 14, 1975, HE AND APPROXIMATELY 40 OTHER FIREFIGHTERS WERE DOWNGRADED AS A RESULT OF THE AGENCY'S RECLASSIFICATION OF THEIR POSITIONS. IN ACCORDANCE WITH PARAGRAPHS 2-1 AND 2-6 OF FEDERAL PERSONNEL MANUAL, CHAPTER 351, THE AGENCY APPLIED REDUCTION-IN-FORCE PROCEDURES IN EFFECTING THE DOWNGRADINGS.

THE FIREFIGHTERS TIMELY APPEALED THE CLASSIFICATION ACTIONS WHICH DOWNGRADED THEIR POSITIONS TO THE CIVIL SERVICE COMMISSION (COMMISSION). ON JULY 2, 1976, THE COMMISSION DETERMINED THAT THE POSITIONS OF THOSE FIREFIGHTERS ASSIGNED TO FIRE STATIONS 1 AND 9 WERE PROPERLY CLASSIFIED AT GRADE GS-4. HOWEVER, THE COMMISSION DETERMINED THAT THE POSITIONS OF THE 16 FIREFIGHTERS ASSIGNED TO FIRE STATIONS 3 AND 6, INCLUDING THE POSITION OCCUPIED BY MR. GEMPP, WERE PROPERLY FOR CLASSIFICATION AT THE GRADE GS-5 LEVEL. IN ITS DECISION AND IN AN ACCOMPANYING LETTER THE COMMISSION DIRECTED THE AGENCY TO CLASSIFY THE 16 POSITIONS AT FIRE STATIONS 3 AND 6 AT THE GRADE GS-5 LEVEL WITH AN EFFECTIVE DATE RETROACTIVE TO THE DATE OF THE CHANGE TO LOWER GRADE.

ON APRIL 14, 1977, THE COMMISSION PROVIDED THE AGENCY WITH GUIDANCE AS TO THE IMPLEMENTATION OF ITS JULY 2, 1976 CLASSIFICATION APPEALS DECISION. THE COMMISSION ADVISED THAT IF THE CLASSIFICATION ERROR DOWNGRADING THE POSITIONS AT THOSE TWO STATIONS HAD NOT BEEN MADE, THE REDUCTION-IN-FORCE ACTION OF DECEMBER 1975 WOULD HAVE RESULTED IN THE GS-5 FIREFIGHTERS WITH THE HIGHEST RETENTION STANDINGS BEING ASSIGNED TO THE AVAILABLE GS-5 POSITIONS AT STATIONS 3 AND 6. ACCORDINGLY, THE COMMISSION RECOMMENDED THAT THE RETENTION REGISTER WHICH EXISTED IN DECEMBER 1975 BE USED TO DETERMINE WHICH EMPLOYEES SHOULD HAVE BEEN RETAINED AT THE GS-5 LEVEL AND THAT THOSE INDIVIDUALS BE RESTORED TO THOSE GRADES. INCIDENT TO SUCH ACTION IT WAS RECOMMENDED THAT THOSE EMPLOYEES LOCATED AT STATIONS 3 AND 6 WHO WERE NOT ENTITLED TO GRADE RESTORATION BE RELOCATED TO OTHER FIRE STATIONS.

THE RECORD SHOWS THAT DURING THE PERIOD DECEMBER 14, 1975, TO SEPTEMBER 24, 1977, THE PLAINTIFF WAS ASSIGNED TO DUTY AT EITHER STATION 3 OR STATION 6. DURING THAT PERIOD THE CLAIMANT WAS COMPENSATED AS A GRADE GS- 4 EMPLOYEE EXCEPT FOR THE PERIOD SEPTEMBER 12 TO OCTOBER 24, 1976, DURING WHICH HE HAD RECEIVED A TEMPORARY PROMOTION. THE RECORD ALSO SHOWS THAT THE AGENCY HAS INFORMALLY ADVISED YOUR OFFICE THAT MR. GEMPP WAS NOT ENTITLED TO SAVED PAY INCIDENT TO HIS DOWNGRADING.

ALTHOUGH UNDER THE APPROPRIATE REDUCTION-IN-FORCE PROCEDURES, MR. GEMPP WOULD NOT HAVE BEEN ENTITLED TO ASSIGNMENT AT FIRE STATIONS 3 OR 6 HAD THE POSITIONS AT THOSE STATIONS BEEN PROPERLY RETAINED AT THE GRADE GS-5 LEVEL, SUCH FACT WOULD NOT OPERATE TO DENY HIM THE COMPENSATION ATTACHED TO THE POSITION HE OCCUPIED DURING THE PERIOD IN QUESTION. IT IS UNDISPUTED THAT PRIOR TO THE DOWNGRADING ACTION HE HAD BEEN DULY APPOINTED TO THE POSITION OF FIREFIGHTER GS-5 AND THAT DURING THE PERIOD FROM DECEMBER 14, 1975, TO SEPTEMBER 24, 1977, HE WAS ASSIGNED TO DUTIES AT FIRE STATIONS 3 AND 6. AS STATED ABOVE, ON JULY 2, 1976, THE COMMISSION DETERMINED THAT THE FIREFIGHTER POSITIONS AT STATIONS 3 AND 6, INCLUDING THE POSITION OCCUPIED BY MR. GEMPP, WERE PROPERLY FOR CLASSIFICATION AT GRADE GS-5, AND PURSUANT TO 5 C.F.R. 511.703 DIRECTED THAT THE CLASSIFICATION OF THOSE POSITIONS AT THE GS-5 LEVEL WAS TO BE MADE RETROACTIVELY EFFECTIVE.

THE CLASSIFICATION OF POSITIONS IN THE GENERAL SCHEDULE IS GOVERNED BY 5 U.S.C. 5101-5115. SECTION 5115 EMPOWERS THE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT) TO PRESCRIBE REGULATIONS REGARDING THE CLASSIFICATION OF POSITIONS. THE COMMISSION'S REGULATION AT 5 C.F.R. 511.703 (1976) PROVIDES FOR A RETROACTIVE EFFECTIVE DATE FOR CLASSIFICATION WHEN THERE IS A TIMELY APPEAL WHICH RESULTS IN THE REVERSAL, IN WHOLE OR IN PART, OF A DOWNGRADING OR OTHER CLASSIFICATION ACTION WHICH HAD RESULTED IN THE REDUCTION OF PAY. IN THE ABOVE SITUATION AN EMPLOYEE MAY BE AWARDED BACK PAY FOR THE PERIOD DURING WHICH HE WAS DOWNGRADED. SEE STANLEY M. DEMICH, B-191794, SEPTEMBER 19, 1978, AND JAMES C. PAYNE, B-191801, OCTOBER 20, 1978.

IN ACCORDANCE WITH THE PROVISIONS OF 5 C.F.R. 511.703 THE COMMISSION'S CLASSIFICATION DECISION OF JULY 2, 1976, REQUIRED THAT THE POSITIONS AT FIRE STATIONS 3 AND 6 BE CLASSIFIED AT THE GS-5 LEVEL RETROACTIVE TO THE DOWNGRADING ACTION, DECEMBER 14, 1975. ACCORDINGLY, MR. GEMPP OCCUPIED A PROPERLY ESTABLISHED AND CLASSIFIED FIREFIGHTER POSITION AT THE GRADE GS-5 LEVEL DURING THE PERIOD DECEMBER 14, 1975, TO SEPTEMBER 24, 1977. WHILE THE RECORD INDICATES THAT THE APPLICATION OF THE PERTINENT REDUCTION-IN- FORCE PROCEDURES REQUIRED THE REASSIGNMENT OF MR. GEMPP TO A LOWER GRADE POSITION, HE CONTINUED TO HOLD THE HIGHER GRADE POSITION UNTIL THE EFFECTIVE DATE OF HIS REASSIGNMENT AND HE IS ACCORDINGLY ENTITLED TO THE COMPENSATION ATTACHED TO SUCH POSITION. CF. CHERROLD W. SEABROOK, 58 COMP.GEN. 197 (1979).

IN VIEW OF THE ABOVE, MR. GEMPP MAY BE ALLOWED BACK PAY IN THE AMOUNT FOUND DUE INCIDENT TO HIS OCCUPANCY OF A GRADE GS-5 POSITION.

WE HAVE NOT ADVISED SENATORS CHAFFE AND PELL AND CONGRESSMAN ST. GERMAIN OF OUR CONCLUSIONS IN THIS CASE.