Entitlement to Backpay After Termination of Temporary Promotions

GAO was asked whether the backpay remedy that was recommended by a grievance examiner for two employees of the Equal Employment Opportunity Commission (EEOC) may be implemented. The record showed that the two employees simultaneously received temporary promotions as supervisors. Both employees were notified in advance that the promotions were temporary and that, when their services were no longer needed, they would be returned to their former grade and salary. Further, each employee signified his understanding of the conditions of the temporary promotions in writing. Subsequently, as part of a reorganization in EEOC, both employees were offered reassignment, which they accepted, at the same grade and salary as their permanent positions since their supervisory positions were to be abolished. However, without further notice, EEOC headquarters executed personnel actions terminating the two temporary promotions and returning the employees to their permanent positions. Since the employees' district office had not been notified of the termination action, both employees continued to perform the duties of the supervisory positions until they received permanent promotions at the supervisory grade. Subsequently, both employees claimed backpay for the difference between their former grade's pay and the supervisory grade's pay for the period after their temporary promotions were terminated until they received their permanent promotions. Further, a grievance examiner of EEOC found that, since the employees continued to perform all the duties of the supervisory positions throughout the period in question and since the period in dispute was well beyond 60 days, the employees were entitled to backpay. However, GAO held that the agency's action in ending the temporary promotions had the effect of transforming the temporary promotions into details to higher grade positions. Since temporary promotions may be ended at the discretion of the agency and since the employees knew or should have known of the terminations, the employees were not entitled to backpay. Additionally, GAO stated that the grievance examiner erred in his finding. Regulations require that a higher grade detail be extended beyond 120 days before backpay is due. Accordingly, the backpay remedy recommended by the examiner may not be implemented.