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Office of Merit Systems Oversight and Effectiveness

Date: October 30, 2001
File Number: [01-0034]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

Pursuant to 5 CFR § 178.102(a), [claimants' representative] filed a claim on behalf of the claimants on May 31, 2001. The claimants are employees of the [agency, city, state]. The claimants are requesting back pay for potential misclassification. [Representative] filed an agency grievance on behalf of the claimants on February 26, 2001. The agency denied their claim on March 15, 2001. We acknowledged receipt of this claim on June 5, 2001. The agency administrative report was received on September 26, 2001. For the reasons discussed herein, the claim is denied.

[Representative], the claimants' attorney, requests compensation for the claimants for the difference in pay between the DG-4 level and the DG-5 level for the period of September 1997 to December 2000. [Claimant's representative] states that a classification audit was conducted on the claimants' DG-4 level positions in September 1997, but the initial findings were dismissed and the agency made the decision to not upgrade the claimants' positions to the DG-5 level. The claimants later received merit promotions to the DG-5 level in December 2000. Mr. Stein contends that the basic nature of the claimants' duties never changed during the period at issue. The essential character of the claim is that their positions were misclassified for several years and that the claimants' positions should have been upgraded to the DG-5 level following the initial classification audit in September 1997.

The agency agrees that a classification review of the claimants' positions was conducted in 1997. According to the agency, a personnel management specialist within the HR office made an initial classification finding of the claimants' positions at the DG-5 level. During further review by the lead personnel management specialist in the HR office, a recommendation was made to the manager having position classification authority that the two positions were most appropriately classified to the DG-4 level. That manager concluded that the DG-4 level was the correct grade level of classification and the positions, therefore, remained at that level. In December 2000, both claimants applied and were selected for two new DG-5 positions. In the agency's words, the claimants were promoted as the result of a merit promotion advertisement for new positions (emphasis added). These new positions involved additional duties above what the claimants were performing at the DG-4 level and, therefore, the positions warranted classification at the DG-5 level.

The Civilian Personnel Law Manual states that:

a federal employee is entitled only to the salary of the position to which the employee is appointed, regardless of duties performed. Even though a position is subsequently reclassified to a higher grade consistent with the duties the employee has been performing, such action may not be made retroactively effective. United States v. Testan, 424 U.S. 392 (1976).

It further states that:

Employees of the Federal government are entitled only to the salaries of the positions to which they are actually appointed regardless of the duties they perform. When an employee performs duties at a grade level higher than that in which his position is classified and is successful in obtaining reclassification of his position and promotion, no entitlement exists for compensation at the higher grade level prior to the date the necessary administrative actions are taken to effect the promotion. 52 Comp. Gen. 631 (1973) and 39 Comp. Gen. 583 (1960). See also B-204769, April 13, 1982; and B-207889, August 31, 1982. When an employee performs duties normally performed by one in a grade level higher than the one he holds, no entitlement to the salary of the higher level position exists until such time as the individual is actually promoted to that level. See also B-192560, December 14, 1978.

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982. The claimants were not actually promoted to the DG-5 level until they were selected for DG-5 level positions under merit promotion procedures in December 2000. Accordingly, the claimants cannot be retroactively awarded back pay for the claim period prior to the effective date of their promotions to the DG-5 level positions. The claim is denied.

We note that even though 5 U.S.C. § 5112 and 5346(c) authorize OPM to decide position classification and job grading appeals, respectively, OPM's authority to adjudicate compensation and leave claims flows from a different law - - 31 U.S.C. § 3702. The authority in section 3702 is narrow and limited to adjudication of compensation and leave claims. Section 3702 does not include any authority to decide position classification or job grading appeals. Therefore, OPM may not rely on 32 U.S.C. §3702 as a jurisdictional basis for deciding position classification or job grading appeals, and does not consider such appeals within the context of the claims adjudication function that it performs under section 3702. Cf. Eldon D. Praiswater, B-198758, December 1, 1980 (Comptroller General, formerly authorized to adjudicate compensation and leave claims under section 3702, did not have jurisdiction to consider alleged improper job grading); Conon R. Odom, B-196824, May 12, 1980 (Comptroller General did not have jurisdiction to consider alleged improper position classification). In addition, pursuant to 5 U.S.C. Chapter 47, OPM approved a demonstration project at the claimant's organization, the China Lake facility. Therefore, both employees are covered by the demonstration project's personnel system where classification appeal issues are resolved at the agency level.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

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