Office of Merit Systems Oversight and Effectiveness

Date: May 8, 2002
File Number: [02-0017]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is an Electrical Engineer, GS-850-12 with the [agency]. The Office of Personnel Management (OPM) received the compensation claim on March 6, 2002, and the agency administrative report on April 24, 2002. The claimant is requesting back pay for incorrect pay setting. For the reasons discussed herein, the claim is denied.

The claimant disagrees with the step that the agency assigned her when she was promoted on May 21, 2000. The claimant stated that she applied for and was selected for a Civil Engineering, GS-0810-11, step 3 position, which was effective December 19, 1999. Her within grade increase to step 4 was effective April 9, 2000.

The claimant stated that she was competitively promoted to an interdisciplinary position as a Civil Engineering, GS-0810-12 position, effective May 21, 2000. The claimant believes the agency should use the Electrical Engineering pay scale rather than the Civil Engineering pay scale to determine her pay because the Electrical Engineering pay scale is higher. She believes the agency should set an employee's pay to what is most advantageous to the employee.

The claimant submitted copies of three different Notification of Personnel Action Forms (SF-50) prepared by the Civilian Personnel Operations Center for her May 21, 2000 promotion. The first SF-50, approved on May 23, 2000, shows the claimant promoted from a Civil Engineer, GS-0810-11, step 4 position to a Civil Engineer, GS-1810-12, step 3 position. The second SF-50, approved on June 14, 2000, corrects the position's title from Civil Engineer, GS-1810 to Electrical Engineer, GS-0850. The third SF-50, approved on June 23, 2000, added, "Special Rate Under 5 U.S.C. 5305" under the Remarks Section.

The agency stated that "since the rules for promotion from one special rate to a different special rate are not specifically addressed in law or regulation, one should then use intent and consistent logic" when a promotion occurs. The agency explained "when an employee in a position to which a special salary rate schedule does not apply is promoted to a position to which a special salary rate schedule applies, the agency shall first determine the employee's step or rate in the higher grade or level, without regard to the special rate schedule, and then shall fix the employee's rate at the corresponding numerical step or rate in the special salary rate schedule for the grade to which promoted."

Section 530.306(f) of title 5, Code of Federal Regulations, provides for promotion of a non-special salary rate GS employee to a GS special rate position. However, there are no regulations that cover the promotion of a GS employee from one special rate pay schedule to another special rate pay schedule. Section 5334(b) of title 5, United States Code, provides for pay setting for GS employees promoted to a higher grade. The statute reads,

An employee who is promoted to a position in a higher grade is entitled
to basic pay at the lowest rate of the higher grade which exceeds his existing 
rate of basic pay by not less than two step-increases of the grade from which
he is promoted.

OPM reviewed the Special Salary Rate Tables (SSRT) applicable to the Civil Engineer, GS-0810 (SSRT #0414) and the Electrical Engineer, GS-0850 (SSRT #0422) that were effective at the time of the promotion. Prior to May 21, 2000, the claimant's basic pay, based on the special salary rate for the Civil Engineer, GS-0810-11, step 4 was $48,320.00. When promoted according to law, she should have been promoted to the lowest rate of the higher grade, GS-12, that exceeds the "value" of two step increases of the grade from which she is being promoted, GS-11.

The pay setting for a promotion should have included the following procedures:

First step: Reviewed Special Salary Rate Table Number 0414 to identify the employee's scheduled rate of basic pay for her position prior to the promotion

Civil Engineer, GS-0810-11, step 4 = $48,320.00

Second step: Computed the dollar amount of two step increases at the employee's current grade

2 x $1,306.00 (dollar value of step intervals) = $2,612.00

Third step: Added the results of the first two steps

$48,320.00 + $2,612.00 = $50,932.00

Fourth step: Reviewed Special Salary Rate Table Number 0422 to identify the lowest GS-12 salary that exceeds $50,932.00

Electrical Engineer, GS-0850-12, step 1 = $51,650.00

The agency followed the applicable statute for promotions and set the pay of the claimant at the Electrical Engineer, GS-0850-12, step 1. 

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. Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, March 8, 1982. The claimant provides no evidence that the agency acted in an arbitrary or capricious manner in promoting her to the Electrical Engineer, GS-0850-12, step 1 position. Therefore, we concur that the agency's actions were in accordance with the intent of 5 U.S.C. 5334 when it placed the claimant in the Electrical Engineer, GS-0850-12, step 1 position. Hence, the claim is denied.

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.