Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Southern Nevada District Office
Nevada State Office
Bureau of Land Management
Department of the Interior
Las Vegas, Nevada
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/27/2016
Date
The claimant requests that the waiting period for her within-grade increase (WGI) from GS-11, step 5, to GS-11, step 6, in her current position be recalculated by including the 74 weeks she spent at that step while occupying a previous GS-11 position, and "retroactive payment of wages." We received the claim request on October 21, 2014, and the agency administrative report (AAR) on December 2, 2014. For the reasons discussed herein, the claim is denied.
The claimant previously occupied the position of Realty Specialist, GS-1170-11, step 5. In June 2010, she competed and was selected for the position of Outdoor Recreation Planner, GS-023-9 (full performance level GS-11). On August 29, 2010, she was placed in this position via change to lower grade as GS-023-9, step 10, using her highest previous rate but resulting in a loss of pay, and on August 28, 2011, she was promoted to the full performance level as GS-023-11, step 5. On August 25, 2013, after completion of a two-year waiting period, she received a WGI to GS-023-11, step 6.
The claimant asserts that for purposes of determining whether a WGI waiting period has been met, "multiple waiting periods of credible [sic] service can be combined provided there is no equivalent increase within the waiting period, which is true in [her] case," and requests OPM credit "earned credible [sic] service toward the effective date for a WGI based upon re-promotion." She states that the 1979 GAO decision which her agency relied on in denying her request "did not investigate the definition of credible [sic] service for a WGI, adjudicate whether or not the equivalent increase occurred outside the waiting period, and explicitly adjudicate whether or not a waiting period must be completed in one continuous period."
The agency's rationale for the two-year waiting period is explained in its AAR as follows:
In accordance with 5 CFR 531.405(2) [sic], a waiting period for within grade increases begins on receiving an equivalent increase. In addition, 5 CFR 531.407(a)(2), states that a GS employee's equivalent increase is considered to occur at the time of a promotion (permanent or temporary) to a higher grade. [Claimant's] re-promotion to GS-0023-11, step 5, meets the definition of an equivalent increase and therefore, effected the commencement of her within-grade increase. Further, 43 Comp. Gen. 507 (1964) upheld that when an employee is demoted and later repromoted to their former grade, a new waiting period for periodic step increases would begin, even though the employee was entitled to receive the same rate of pay during the demotion period as a retained rate. [1]
The length of the waiting period for within-grade increases at steps 4 through 6 is defined in section 531.405(a)(1)(ii) of title 5, Code of Federal Regulations (CFR), as "104 calendar weeks of creditable service."
In relevant part, "creditable service" is defined in 5 CFR 531.406(a) as follows:
Civilian employment in any branch of the Federal Government (executive, legislative, or judicial) or with a Government corporation as defined in section 103 of title 5, United States Code, is creditable service in the computation of a waiting period. Service credit is given during this employment for periods of annual, sick, and other leave with pay; advanced annual and sick leave; service under a temporary or term appointment; and service under an interim appointment made under section 772.102 of this chapter.
This definition is amplified in 5 CFR 531.406(b) to include, for service creditable for one WGI, military service and time in a nonpay status subject to certain restrictions, and in 5 CFR 531.406 (c) for service creditable for successive WGIs, time during a leave of absence in certain situations, pending exercise of restoration or reemployment rights, and pending reemployment following receipt of injury compensation under specified conditions. Thus, "creditable service" relates to the type of employment and authorized periods of absence from that employment for the calculation of WGI waiting periods.
The commencement of a waiting period is defined in 5 CFR 531.405(b), which states, in relevant part, that a waiting period begins:
(2) On receiving an equivalent increase.
For GS employees, an "equivalent increase" is considered to occur at the time of certain personnel actions listed in 5 CFR 531.407(a). As relevant to this case, 5 CFR 531.407(a)(2) and (3) provide that an equivalent increase occurs at the time of the following personnel actions:
(2) A promotion (permanent or temporary) to a higher grade, including the promotion of an employee receiving a retained rate under 5 CFR 359.705 or 5 CFR part 536 that does not result in a pay increase, but excluding-
(i) A temporary promotion if, at the end of that temporary promotion, the employee is returned to the grade from which promoted; or
(ii) A promotion to a higher-graded supervisory or managerial position when the employee does not satisfactorily complete a probationary period established under 5 U.S.C. 3321(a)(2) and is returned to a position at the lower grade held before promotion.
The plain and unambiguous language of 5 CFR 531.407(a)(2) and 5 CFR 531.405(b)(2), in concert, makes clear that a waiting period commences when an employee is promoted to a higher grade, because promotion to a higher grade represents an “equivalent increase.” Only two specific exclusions to this rule regarding promotions are defined at 5 CFR 531.407(a)(2)(i) and (ii) above, neither of which allows for crediting time at a previously-held grade and step when an employee is re-promoted or applies to the claimant. Therefore, under the provisions of 5 CFR 531.407(a)(2) which are applicable to her position, the claimant's waiting period for her WGI from GS-023-11, step 5 to step 6, began when she received the promotion to the GS-023-11 position. See B-176492, October 26, 1972; and B-191351, August 7, 1978. This means that the time she spent at the GS-11 level before her demotion may not be combined with the time she spent at the GS-11 level after her repromotion for purposes of the WGI waiting period.
(3) Application of the maximum payable rate rule in § 531.221 that results in a higher step rate within the employee’s GS grade… except for application of that rule in a demotion to the extent that the employee’s rate of basic pay after demotion does not exceed the lowest step rate that equals or exceeds the employee’s rate of basic pay immediately before the demotion.
The personnel action in 5 CFR 531.407(a)(3) above describes the conditions which may also result in an “equivalent increase” at which point a WGI waiting period commences. We considered the applicability of this provision to the claimant’s demotion which occurred prior to her promotion to the GS-023-11 position. However, the circumstances of that demotion did not result in an “equivalent increase” as described in 5 CFR 531.407(a)(3). When the claimant moved from the GS-1170-11 position to the GS-023-9 position, she was given the maximum payable rate resulting in a higher step within her GS grade. However, after this demotion, her rate of basic pay ($54,028) did not exceed the lowest step that equaled or exceeded her rate of basic pay immediately before the demotion ($56,991), because her rate of basic pay before the demotion exceeded the highest step on the GS-9 base pay table. Therefore, an equivalent increase did not occur when the claimant was demoted.[2] As a result, the equivalent increase that occurred at the time of her subsequent promotion to the GS-023-11 position commenced the WGI waiting period under the provisions of 5 CFR 531.407(a)(2), as discussed previously.
The claimant cites "Fact Sheet: Within Grade Increases" on OPM's Pay and Leave Administration website that states, as one of the conditions for receiving a WGI:
- The employee must not have received an "equivalent increase" in pay during the waiting period. (See 5 CFR 531.407.)[3]
The claimant states that when she received the promotion to the GS-023-11 position, she was not in a waiting period because she was at grade GS-9, step 10, and therefore was ineligible for further step increases. She appears to conclude this negates the promotion for purposes of calculating the waiting period from step 5 to step 6. However, her argument that she was not in a waiting period when the promotion occurred undermines her assertion that the 74 weeks of waiting period she had served at step 5 in the previous GS-1170-11 position should be credited toward her waiting period after promotion. That is, because she had taken a voluntary downgrade, she was no longer in a waiting period for advancement to grade GS-11, step 6, when the subsequent promotion occurred such that the time already served could be credited toward the waiting period. The voluntary downgrade cannot be ignored and treated as if it did not occur. Therefore, when the claimant was re-promoted the requirements of 5 CFR 531.405(b) became operative and the waiting period for advancement to GS-023-11, step 6, commenced. See B-193336, March 23, 1979.
The claimant asserts that "the GAO decisions being used by the [agency] to reach conclusions about her WGI are misinterpreted, outdated and too restrictive." She requests OPM's decision "be based upon a broader, up to date interpretation of the entire chapter." However, monies may not be disbursed from the Federal Treasury unless specifically authorized by statute or its implementing regulations. We are not at liberty to create a category of entitlement not specifically so authorized when the meaning and intent of the applicable statute and regulations are clear, as is the case here. Thus, the claimant's request that the waiting period for her advancement from GS-023-11, step 5 to step 6, be recalculated is denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] The claimant asserts this 1979 GAO decision is not applicable to her situation because it "dealt with a RIF (reduction in force) scenario" whereas she took a voluntary downgrade. However, the particular details of this case involving an employee on salary retention following RIF had no bearing on the GAO conclusion that "upon re-promotion... the employee must be considered as having received an equivalent increase in compensation, and the waiting period for the next step increase would commence on the date of the re-promotion..."
[2] We note, however, that because an equivalent increase did not occur when the claimant was demoted, the time she spent at the GS-11 level prior to her demotion would have been creditable service in the GS-9 position if she had been placed at a step below step 10. As provided in 5 U.S.C. 5335(a) and 5 CFR 531.402(a)(3), GS within-grade increases apply to employees who are paid less than the maximum rate of their grade.
[3] The statutory language at 5 U.S.C. § 5335(a) describes the conditions imposed on application of the prescribed waiting periods. One of those conditions is that "the employee did not receive an equivalent increase in pay from any cause during that period.” 5 U.S.C. 5335(a). Although the regulation at 5 CFR 531.407 does not include the language "during the waiting period", the language in the authorizing statute governs.: