Philip M. Brey-Retroactive Temporary Promotion-Back

B-261517 Dec 26, 1995 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A former Government Printing Office (GPO) employee appealed his denied claim for additional pay, contending that he was entitled to additional pay, since GPO detailed him to a higher position. GAO held that the claimant was not entitled to backpay, since he: (1) failed to provide sufficient evidence that he performed all of the duties of the higher-graded position. and (2) was required to perform the duties in the foreman's absence. Accordingly, the settlement was affirmed. View Decision Matter of: Philip M. Brey-Retroactive Temporary Promotion-Back Pay File: B-261517 Date: December 26, 1995 Record is insufficient to support claim by former assistant foreman at the Government Printing Office that he was detailed to the higher-graded foreman's position for an extended period and, therefore, was entitled under an agency instruction to a temporary promotion and corresponding increase in pay. The claimant failed to meet his burden of proving that he was detailed to, or performed all the duties of, the higher-graded position where the record indicates that (1) the claimant's job description required him to perform the duties of the foreman in the foreman's absence; and (2) the foreman, although detailed to another work unit, continued to supervise the claimant and retained overall responsibility for the claimant's work unit. DECISION Mr. Philip M. Brey, a former employee of the Government Printing Office (GPO), appeals Claims Group settlement Z-2869421, Nov. 29, 1994, denying his claim for additional pay for the period of January 12, 1987, to October 20, 1992, during which period, Mr. Brey asserts, the agency detailed him to a higher position entitling him to more pay. We conclude that the duties performed by Mr. Brey during this period did not constitute a detail to the higher position. Accordingly, we affirm the settlement. BACKGROUND During the period of time in question, Mr. Brey's official job title was Assistant Foreman, Video Keyboard Section (VKS), Shift 1, Electronic Photocomposition Division. On January 12, 1987, the agency detailed the VKS Foreman, Mr. Charles E. Dailey, to another section within the same division. Through counsel, Mr. Brey asserts that the division superintendent told him that he, Mr. Brey, was in charge of the VKS until further notice. He states that he performed all of the duties of the foreman, including counseling, disciplining, appraising, training, and otherwise supervising the VKS employees; creating training procedures; developing performance plans; making selections for vacant and new positions; and scheduling employee work. To support his claim, Mr. Brey submitted a number of statements from co-workers to the effect that he performed all the duties of the foreman. Mr. Brey also included an affidavit from Mr. Dailey stating that Mr. Brey was responsible for the day-to-day operations of the VKS and that he supervised Mr. Brey's performance. Mr. Dailey also stated that "Mr. Brey's duties during that period of time were identical to the duties I performed as the Foreman of the VKS." The agency acknowledges that Mr. Brey assumed direction of most of the operations of the VKS in Mr. Dailey's absence, but disputes that this constituted a detail to the foreman's position. [1] The agency notes that the position description for the assistant foreman states that the assistant "[a]ssumes the duties of the Foreman in his/her absence." The agency also notes that Mr. Dailey continued to supervise Mr. Brey's performance. Finally, the agency points to a statement in the record from the division superintendent that when Mr. Dailey was detailed to another section, "it was my intent that Mr. Brey assume the function of assigning work and handling the details of the section, but that Mr. Dailey would still remain in overall charge." OPINION 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; and (2) he or she actually was detailed to a higher-graded position. Turner-Caldwell III, 61 Comp.Gen. 408 (1982); Albert C. Beachley and Robert S. Davis, 61 Comp. Gen. 403 (1982). In this case, the agency concedes the first point. GPO Instruction 615.1B, Regulations Governing the Detail of Employees, Feb. 2, 1976, which still is in effect, provides that employees detailed to higher positions for more than 30 days should be given temporary promotions. In Howard A. Morrison, B-210917, Aug. 10, 1983, we concluded that this Instruction establishes a nondiscretionary agency policy and that the failure to comply with the Instruction may justify an award of backpay under the Back Pay Act, 5 U.S.C. Sec. 5596. With respect to the second point, the claimant has the burden of proving that he or she was detailed to and performed the duties of a higher-graded position.