B-202106, JUL 20, 1981

B-202106, JUL 20, 1981

DIGEST: AN INSTRUMENT MAKER, WG-14, EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CLAIMS THAT HE WAS DETAILED TO A WAGE GRADE SUPERVISORY POSITION, WS 14, AND THAT HE PERFORMED ALL THE DUTIES OF THE SUPERVISORY POSITION. THE DEPARTMENT OF THE ARMY CLAIMS THAT THE EMPLOYEE DID NOT PERFORM ALL OF THE SUPERVISORY FUNCTIONS. THE EVIDENCE SUBMITTED BY CLAIMANT FAILS TO SHOW THAT HE WAS EITHER DETAILED TO OR PERFORMED ALL THE DUTIES OF THE SUPERVISORY POSITION. HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY IS DENIED.

TALMADGE S. KING, RETROACTIVE TEMPORARY PROMOTION AND BACK PAY:

MR. TALMADGE S. KING APPEALS OUR CLAIMS GROUP SETTLEMENT DATED MARCH 4, 1980, WHICH DENIED HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD THAT HE ALLEGEDLY PERFORMED HIGHER-LEVEL DUTIES. THE QUESTION PRESENTED FOR OUR DECISION IS WHETHER MR. KING HAS PRESENTED SUFFICIENT EVIDENCE TO SHOW THAT HE PERFORMED ALL OF THE DUTIES OF THE POSITION THAT HE CLAIMS HE WAS DETAILED TO. WE HOLD THAT MR. KING HAS NOT PRESENTED SUFFICIENT EVIDENCE TO PROVE THAT HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.

MR. KING WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY AS AN INSTRUMENT MAKER, WG-3112-14. ON MAY 15, 1973, MR. KING WAS ASSIGNED TO BUILDING 5436 TO OVERSEE THE BUILDING RENOVATION PROGRAM AND PROCURE SMALL TOOLING NECESSARY TO OPERATE THE SHOP. DURING THE RENOVATION PERIOD, MR. KING ASSUMED RESPONSIBILITY FOR BUILDING SAFETY, SECURITY, AND FIRE CONTROL. WHEN THE BUILDING BECAME OPERATIONAL, MR. KING RECEIVED WORK FROM CUSTOMERS AND ASSIGNED WORK TO FELLOW INSTRUMENT MAKERS AND OTHER CRAFTSMEN AS REQUIRED TO COMPLETE JOBS. DURING THE PERIOD IN WHICH HE PERFORMED THESE DUTIES, ON SEPTEMBER 29, 1974, MR. KING'S JOB WAS AUDITED AND UPGRADED TO INSTRUMENT MAKER, WG-4712-15. HOWEVER, THE RESULTS OF THIS AUDIT DID NOT SHOW THAT MR. KING WAS PERFORMING SUPERVISORY DUTIES. ABOUT 4 YEARS AFTER HE WAS ASSIGNED TO BUILDING 5436, ON JULY 24, 1977, MR. KING WAS PROMOTED TO WAGE GRADE SUPERVISOR, WS-4712-14.

MR. KING FILED A CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD FROM MAY 15, 1973, TO JULY 24, 1977, BASED ON OUR TURNER- CALDWELL DECISIONS. 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). IN THOSE DECISIONS WE HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER-GRADE POSITION AND THE AGENCY FAILS TO SEEK CIVIL SERVICE COMMISSION APPROVAL TO EXTEND THE DETAIL FOR A PERIOD BEYOND 120 DAYS, THE AGENCY MUST AWARD THE EMPLOYEE A TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD OF THE DETAIL IN EXCESS OF 120 DAYS. FEDERAL PERSONNEL MANUAL (FPM) BULLETIN NO. 300-40, MAY 25, 1977, WAS ISSUED BY THE CIVIL SERVICE COMMISSION IN ORDER TO PROVIDE ADDITIONAL INFORMATION TO ASSIST AGENCIES IN THE PROPER APPLICATION OF THESE DECISIONS.

THE DEPARTMENT OF THE ARMY DENIED MR. KING'S CLAIM ON THE BASIS THAT MR. KING DID NOT FULFILL ALL THE ADMINISTRATIVE AND PERSONNEL MANAGEMENT ASPECTS OF A SUPERVISOR'S ROLE. THE DIRECTOR OF THE DIVISION MR. KING WORKED FOR STATES THAT AT ALL TIMES HE WORKED UNDER THE GENERAL SUPERVISION OF ANOTHER EMPLOYEE WHO WAS AVAILABLE FOR GUIDANCE WHEN REQUIRED. HE ALSO LISTED THE FOLLOWING EIGHT SUPERVISORY FUNCTIONS WHICH HE ASSERTS WERE NEVER THE RESPONSIBILITY OF MR. KING PRIOR TO JULY 1977:

"A. SCHEDULING AND APPROVING LEAVE OF SUBORDINATES.

"B. SETTING PERFORMANCE REQUIREMENTS AND MAKING FORMAL/INFORMAL PERFORMANCE APPRAISALS.

"C. COUNSELING EMPLOYEES ON PROBLEMS; ADJUSTING INFORMAL COMPLAINTS THROUGH DISCUSSION WITH EMPLOYEES AND UNION REPRESENTATIVES.

"D. TAKING INFORMAL CORRECTIVE ACTION ON CONDUCT OR PERFORMANCE PROBLEMS. INITIATING PROPOSALS FOR DISCIPLINARY ACTIONS WHERE NEEDED.

"E. PROMOTING THE PARTICIPATION OF SUBORDINATES IN PROGRAMS SUCH AS THE SUGGESTION PROGRAM, COST REDUCTION PROGRAM, ETC.

"F. MAINTAINING PRODUCTION REPORTS AND RECORDS.

"G. PERIODICALLY REVIEWING JOB DESCRIPTIONS OF SUBORDINATES FOR CURRENCY/ACCURACY.

"H. INITIATING OR PARTICIPATING IN REVIEW AND IMPROVEMENT OF WORK METHODS, ORGANIZATIONAL FEATURES, AND STRUCTURING OF POSITIONS TO ELIMINATE UNNECESSARY ONES AND ACHIEVE OPTIMUM CONTENT IN THOSE REMAINING."

ALSO THE DIRECTOR POINTS OUT THAT A DESK AUDIT PERFORMED ON SEPTEMBER 29, 1974, DID NOT REVEAL THAT MR. KING WAS PERFORMING SUPERVISORY DUTIES.

OUR CLAIMS GROUP DENIED MR. KING'S CLAIM BASED ON THE FOLLOWING TWO POINTS. FIRST, THERE WAS NO RECORD IN MR. KING'S OFFICIAL PERSONNEL FOLDER THAT HE WAS DETAILED TO THE INSTRUMENT MAKER FOREMAN, WS-4712-14 POSITION. SECOND, OUR CLAIMS GROUP ACCEPTED THE ARGUMENT RAISED BY THE DEPARTMENT OF THE ARMY THAT MR. KING HAD FAILED TO PROVIDE SUFFICIENT EVIDENCE TO SHOW THAT HE WAS DETAILED TO AND PERFORMED ALL THE DUTIES OF A HIGHER-GRADE POSITION.

MR. KING CLAIMS THAT HE PERFORMED ALL THE DUTIES OF A SUPERVISOR, EVEN THOSE WHICH THE ARMY CLAIMS HE DIDN'T PERFORM. SPECIFICALLY HE STATES THAT HE DID (1) SCHEDULE AND APPROVE LEAVE, (2) MAKE FORMAL AND INFORMAL PERFORMANCE APPRAISALS, (3) COUNSEL EMPLOYEES ON PROBLEMS AND INFORMAL COMPLAINTS, (4) TAKE INFORMAL CORRECTIVE ACTIONS AGAINST EMPLOYEES, (5) PROMOTE THE PARTICIPATION OF SUBORDINATES IN PROGRAMS, (6) MAINTAIN AND SUBMIT BIWEEKLY PRODUCTION REPORTS TO HIS DIRECTOR, (7) REVIEW JOB DESCRIPTIONS AND AIDED SUBORDINATES IN THE UPDATING OF TALENT BANKS, AND (8) REVIEW AND IMPROVE WORK METHODS.

IN SUPPORT OF THIS STATEMENT, MR. KING HAS SUBMITTED THE FOLLOWING EVIDENCE TO SHOW THAT HE WAS DETAILED TO THE HIGHER-GRADE POSITION. FIRST, STANDARD FORM 172-101 (DATED AUGUST 19, 1974), SIGNED BY HIS SUPERVISOR, SETS FORTH THE DUTIES THAT MR. KING WAS PERFORMING AS AN INSTRUMENT MAKER. THOSE DUTIES INCLUDED PERFORMING SUPERVISORY FUNCTIONS REQUIRED IN THE SHOP AND LISTED SIX EMPLOYEES WHOM MR. KING SUPERVISED. SECOND, MR. KING HAS SUBMITTED SIGNED STATEMENTS BY FOUR DIFFERENT EMPLOYEES THAT HE PERFORMED THE DUTIES OF SUPERVISOR. THIRD, HE SUBMITTED A STATEMENT THAT HE FURNISHED ATTENDANCE RECORDS ON A DAILY BASIS. FOURTH, MR. KING'S SUPERVISOR DURING THIS TIME PERIOD MADE THE FOLLOWING STATEMENT CONCERNING HIS SUPERVISION OF MR. KING:

"MR. KING WAS UNDER MY SUPERVISION ON PAPER FOR THE RECORD ONLY. MR. KING DID ALL DUTIES OF A SUPERVISOR EXCEPT THOSE THAT REQUIRED AN OFFICIAL SUPERVISORS SIGNATURE. SINCE I WAS LOCATED IN BUILDING 5400 MACHINE SHOP WITH NO LEAD-MAN OR ASSISTANT FOREMAN, I HAD NO RECOURSE BUT TO LET MR. KING SUPERVISE THE 5436 MODEL SHOP. MR. KING REPORTED TO THE SAME LEVEL OF MANAGEMENT AS I DID ***."

PARAGRAPH 4 OF FPM BULLETIN NO. 300-40 DEFINES A DETAIL AS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT POSITION WITHIN THE SAME AGENCY FOR A BRIEF, SPECIFIED PERIOD, WITH THE EMPLOYEE RETURNING TO HIS REGULAR DUTIES AT THE END OF THE DETAIL. PARAGRAPH 8F OF THE FPM BULLETIN REQUIRES AGENCIES, IN ACCORDANCE WITH THE FPM SUPPLEMENT 296-31, BOOK II, SUBCHAPTER S3-13, TO RECORD DETAILS IN EXCESS OF 30 CALENDAR DAYS ON A STANDARD FORM 52 OR OTHER APPROPRIATE FORM AND TO FILE IT ON THE PERMANENT SIDE OF THE EMPLOYEE'S OFFICIAL PERSONNEL FOLDER. HOWEVER, IN THE ABSENCE OF THIS FORM OF DOCUMENTATION, PARAGRAPH 8F RECOGNIZES THAT THE EMPLOYEE MAY PROVIDE OTHER FORMS OF ACCEPTABLE PROOF OF HIS DETAIL. SUCH ACCEPTABLE DOCUMENTATION INCLUDES OFFICIAL PERSONNEL DOCUMENTS OR OFFICIAL MEMORANDA OF ASSIGNMENT, 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.

THE ISSUE IS WHETHER MR. KING HAS MET HIS BURDEN OF PROOF AND SUBMITTED EVIDENCE TO SHOW THAT HE PERFORMED THE DUTIES OF THE HIGHER LEVEL POSITION.

BASED ON THE RECORD, WE BELIEVE THAT MR. KING HAS NOT SUBMITTED ENOUGH EVIDENCE TO SHOW THAT HE WAS DETAILED TO THE HIGHER-LEVEL POSITION. THIS REGARD, WE GIVE WEIGHT TO THE STATEMENT BY MR. KING'S SUPERVISOR, THAT MR. KING ONLY PERFORMED SOME OF THE DUTIES OF A SUPERVISOR, WS-4712, AND THAT 8 AREAS OF A SUPERVISOR'S ROLE WERE NEVER HIS RESPONSIBILITY. FURTHER, ONE OF MR. KING'S SUPPORTING DOCUMENTS INDICATES THAT HE DID NOT SIGN DOCUMENTS THAT A SUPERVISOR, WS-4712, WOULD NORMALLY SIGN. ALSO, MR. KING ALLEGES THAT HE SUPERVISED 6 EMPLOYEES BUT THE POSITION DESCRIPTION FOR THE SUPERVISOR, WS-4712, POSITION STATES THAT SUCH A SUPERVISOR IS RESPONSIBLE FOR 8-12 EMPLOYEES. IN ADDITION, THE DESK AUDIT PERFORMED ON SEPTEMBER 29, 1974, DID NOT MENTION SUPERVISORY FUNCTIONS AS PART OF MR. KING'S JOB DUTIES. BASED ON ALL THE EVIDENCE SUBMITTED WE CONCLUDE THAT MR. KING PERFORMED SOME OF THE DUTIES OF THE SUPERVISORY POSITION BUT THAT HE HAS NOT SUBMITTED SUFFICIENT EVIDENCE TO SHOW THAT HE PERFORMED ALL OF THE DUTIES NECESSARY TO PROVE THAT HE WAS DETAILED TO THIS POSITION.

ACCORDINGLY, OUR CLAIMS GROUP SETTLEMENT DENYING MR. KING'S CLAIM FOR RETROACTIVE TEMPORARY PROMOTION AND BACK PAY IS UPHELD.