Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Carlisle, Pennsylvania
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/08/2018
Date
The claimant is a former employee of the Army War College, Department of the Army in Carlisle, Pennsylvania. In her letter to the U.S. Office of Personnel Management (OPM), the claimant requests that she “receive back pay for the period during which [she] continually performed higher graded duties.” The claim was received on September 19, 2017. For the reasons discussed herein, the claim is denied.
The claimant asserts that over the course of her employment at the U.S. Army War College (College), as a Program Technician GS-7, she performed higher grade-level duties. She also asserts that her supervisor recognized what was happening and submitted a revised position description (PD) for approval so the position might be appropriately classified. In November of 2015 she received a promotion with another agency and left the College with her proposed PD action still pending. She states that after she left, the duties from the draft PD were split up between two other positions. One position was a GS-13, and the other a GS-9. As both positions are higher graded than the position she held with the College, she believes she should receive back pay for the period during which she “continually performed higher graded duties.”
OPM settles Federal civilian employee compensation and leave claims under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, Code of Federal Regulations (CFR). Section 178.102(a) of title 5, CFR, indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication. The claimant is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations. See 5 CFR 178.104. The information provided by the claimant with her request does not show she has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that she has received such a decision. Nevertheless, we may render a decision on her claim based on statute and case law.
Back pay for periods of misclassification is statutorily barred (5 U.S.C. 5596(b)(3)). An employee is entitled only to the salary of the position to which he or she is appointed, regardless of the duties performed. When an employee performs the duties of a higher grade level, there is no entitlement to the salary of the higher grade until the individual is actually promoted. United States v. Testan, 424 U.S. 392 (1976); B-232695. Therefore, back pay is not available as a remedy for mis-assignments to higher level duties or improper classifications. Id.; B-192366.
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.