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Office of the General Counsel

Date: January 23, 1998
Matter of: [xxx]
File Number: s9601705.2

OPM Contact: Paul Britner

An [agency] employee requests reconsideration of our settlement denying his claim for pay retention. The settlement is affirmed.

Title 5, CFR, section 536.104(a) lists certain situations in which there is mandatory entitlement to pay retention. None of these situations appear to apply to this case. Pay retention is not applicable when an employee is reduced in grade or pay at the employee's request. 5 CFR 536.105(a)(3).

FAA Order 3550.11A, paragraph 9d(7) states that the agency has determined that pay retention shall be extended to any eligible employee whose rate of basic pay would otherwise be reduced because the employee no longer meets a specific condition or requirement of employment (including medical standards) established by the agency or OPM.

In this case, the employee asserts that he accepted a lower-graded position for medical reasons. To support his claim, the employee enclosed a letter from the Department of Labor accepting his claim for job-related injuries to his left foot and right toe and offering to pay for surgery to treat the injuries. The treatment of his injuries, though, which may involve a relatively brief period of time, do not establish that he was medically disqualified from holding the higher-graded position. As noted in the original settlement, the [agency's] Deputy Regional Flight Surgeon determined that the employee was not medically disqualified from serving in the higher-graded position when he accepted the transfer to the lower-graded position. Accordingly, we affirm the agency's determination that the employee's transfer was voluntary and, therefore, that he does not qualify for pay retention.

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