BNUMBER:  B-261517
DATE:  December 26, 1995
TITLE:  Philip M. Brey-Retroactive Temporary Promotion-Back
Pay

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Matter of:Philip M. Brey-Retroactive Temporary Promotion-Back Pay

File:     B-261517

Date:   December 26, 1995

DIGEST

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.  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.  See, e.g., Dennis F. Morgan, B-203926, Sept. 
22, 1981.  This is a factual determination, and where the agency's 
determination is reasonable, we will not substitute our judgment for 
that of the agency.  See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 
1982.

In a submission to our Office dated April 21, 1994, the General 
Counsel of GPO explained the basis for the agency's determination in 
Mr. Brey's case as follows:

     "Mr. Dailey remained the Foreman of VKS, although with less of a 
     day-to-day "hands-on" role.  In other words, Mr. Brey was not 
     "detailed" into a higher-level position, he was asked to perform 
     a broader range of functions which were consistent with his 
     position description, but the level of responsibility remained 
     unchanged."

We agree with the agency's determination.  Requiring an employee to 
assume and perform the duties of another position on an acting basis, 
when specifically required by that employee's own position 
description, fundamentally does not constitute a detail to the other 
position.  Instead, the employee is engaged in carrying out 
responsibilities within the scope of his or her regular position even 
if the employee continues to perform in an acting capacity for an 
extended period.  See our decision of today in Martin Kirchhausen, 
B-261661.  As noted above, Mr. Brey's position description as 
assistant foreman specifically required him to perform the duties of 
the foreman on an acting basis.

Further, even if Mr. Brey's performance of the foreman's duties could 
be regarded as a detail, our decisions allowing backpay require a 
showing that the claimant performed all of the duties of the 
higher-graded position.  See, e.g., Dennis F. Morgan, B-203926, Sept. 
22, 1981; Talmadge S. King, B-202106, July 20, 1981.  This is not the 
case here since the Foreman, Mr. Dailey, continued to supervise Mr. 
Brey and retained overall responsibility for the VKS work unit.

Accordingly, the settlement denying Mr. Brey's claim is affirmed.

/s/Seymour Efros
forRobert P. Murphy
General Counsel

1. Preliminarily, the agency contends that Mr. Brey's claim should be 
dismissed because it is time barred by virtue of a GPO regulation that 
supersedes the general 6-year limitation period for submitting a claim 
to our Office under 31 U.S.C.  3702(b).  We disagree, since the 
regulation relied upon by the agency expired by its terms effective 
December 31, 1984, and the agency acknowledges that it has not been 
replaced.