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Office of the General Counsel

Date: June 26, 1998
Matter of: [xxx]
File Number: S001220

OPM Contact: Murray M. Meeker

The claimant, an employee of the [agency], asserts that he is entitled to backpay for the period from May 1996 through January 1998, when he was detailed to perform the duties of a higher graded position. For the reasons discussed herein, the claim is denied.

To establish a claim for backpay based on a detail to a higher graded position, a claimant must show that (1) an agency regulation or agreement requires a temporary promotion for such a detail to a higher graded position and (2) that the claimant was, in fact, detailed to a higher graded position. GPO's regulations mandate that temporary promotions be granted to employees detailed to higher graded positions for more than 30 days. See Philip M. Brey, B-261517, December 26, 1995, and Howard A. Morrison, B-210917, August 10, 1983. Thus, the claimant satisfied the first requirement for a back pay award. However, the claimant does did satisfy the second requirement.

By memorandum dated January 21, 1998, the claimant's supervisor explained that while the claimant performed some of the duties of the higher graded position, the claimant did not perform the full range of duties, nor did the claimant perform the higher graded position duties on a continuous basis. On the contrary, the claimant and another [agency] employee shared responsibility for performing some of the duties of the higher graded position on an alternating weekly schedule. The claimant has acknowledged that he rotated on a weekly basis with another employee in performing the duties of the higher graded position.

Consistent with the fact that the claimant only performed higher graded duties on a rotating basis, the agency has noted that the claimant did not perform higher graded duties for more than 120 consecutive days. The agency has also reported that the claimant did not meet the time-in-grade requirement to be eligible for promotion to the higher graded position.

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.

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