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OPM Contact: Murray M. Meeker
The claimant is employed by the [agency], in [xxx]. While the
claimant is a member of a collective bargaining unit and her claim
was originally filed as a grievance, the agency has advised the
claimant that her 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 claimant reported that in January of 1997, she was assigned
additional duties and advised that she would submitted for
promotion from a GS-5 to a GS-6 Secretary. While the Office of
Personnel Management (OPM) denied the reclassification request, the
[agency] granted the request effective June 26, 1998. The claimant
asserts that if her position had been evaluated correctly and in a
timely manner, the effective date would have been much sooner than
June 26, 1998. On this basis, the claimant seeks back pay for the
period between October 1, 1997 and June 25, 1998.
Even assuming, arguendo, that an earlier evaluation
would have resulted in an earlier effective date for the favorable
classification action, the claimant may not be awarded back pay. It
is well settled that employees are not entitled to back pay for
periods of misclassification. 5 U.S.C. 5596(b)(3).
See United States v. Testan, 424 U.S. 392, 400
(1976) and Erlyn D. Felder,
B-202685, August 17, 1982.
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