Office of the General Counsel

Date: December 16, 1998
Matter of: [xxx]
File Number: s002337

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 Court.