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Pay & Leave Claim Decisions

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Office of the General Counsel

Date: December 16, 1998
Matter of: [xxx]
File Number: s002344

OPM Contact: Murray M. Meeker

The claimant, a civilian employee with the [agency] at [xxx], claims that his pay was improperly set after he was promoted from a GS-5 position to a GS-6 position. While the claimant is a member of a collective bargaining unit and his claim was originally filed as a grievance, the agency has advised the Office of Personnel Management (OPM) that the claim is not covered by a negotiated grievance procedure. The claim is, therefore, subject to review by OPM. See Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990). For the reasons discussed herein, the claim is denied.

The factual circumstances concerning this claim are not in dispute. On July 19, 1998, the employee was promoted from a GS-5 position with retained pay to a GS-6 position. To set the employee's pay after the promotion, the agency added the monetary equivalent of two steps, i.e., $1,332, to the GS-5, step 10, salary, i.e., $25,963, for a total of $27,295. Because this total fell between step 7 and step 8 on the GS-6 salary schedule, the employee's salary was set at the higher step, step 8, of the GS-6 salary schedule.

The claimant asserts that two steps should have been added to his actual pay, $26,713, which would have placed him between step 8 and step 9, and thereby entitled him to the higher step. The claimant's computation is not permitted by law. The two step increase amount may not be added to the claimant's actual pay, i.e., to the claimant's retained rate. 5 U.S.C. 5334(b).(1) See Caesar A. Langston, B-247190, June 4, 1992; Betty J. Beasley, B-197025, August 3, 1981; and Florence N. Ontai, B-172195, May 16, 1974. Accordingly, the claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

1. Subsection (b)(A) of section 5334 expressly provides that if an employee on retained pay is promoted, he is entitled to basic pay at a rate two steps above the rate which he would be receiving if the retained pay provisions in 5 U.S.C. Chapter 53, Subchapter VI, were not applicable to him.

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