Request for Retroactive Promotion and Backpay

A certifying officer for the Community Services Administration requested a decision concerning an employee's entitlement to grade GS-14 with backpay for a period when her official grade was GS-13. The certifying officer was concerned that backpay would be contrary to the general rule that employees are entitled only to the salary of the position to which they are actually appointed regardless of the duties they perform. The issue came from a court settlement between the Administration and three female employees who alleged discrimination because of sex. As a result of the settlement, the three female employees were given retroactive grade promotions to levels held by male counterparts in other divisions. After one of the women resigned, it was recommended that the employee in question be promoted to fill the vacancy. However, a dispute arose between the employee's superiors and the personnel office over the existence of the position. The personnel office stated that the position had been limited to the incumbent with whom the settlement had been made and that the position no longer existed after she resigned. The matter was referred to the Administration's Acting Director who concurred with the promotion. The promotion took place in February 1981; however, it was purported to be retroactive to December 1980. It is for this time period that the certifying officer questions the employee's entitlement to GS-14 pay. GAO stated that generally classification actions may not be made retroactive under civil service regulations. The exception is the misclassification of a position due to discrimination because of race or sex. Also, GAO has held that, where an established position is abolished by mistake, the termination is ineffective and the position may be retroactively restored to correct the error. In the present case, classification action was taken to promote the employee's predecessor to settle the court action for discrimination. The personnel office believed that the position automatically terminated when the predecessor resigned. GAO found no evidence to suggest that the personnel decision was clearly a mistake or that there was a definite policy to retain the GS-14 position after the incumbent left. The record showed that the decision to retain the position and classify it at the GS-14 level did not become final until February 1981. Consequently, GAO concluded that the promotion action was prospective only, and backpay was not justified.