BNUMBER: B-261661
DATE: December 26, 1995
TITLE: Martin Kirchhausen
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Matter of:Martin Kirchhausen
File: B-261661
Date: December 26, 1995
DIGEST
Employee who held a deputy director position is not entitled to
backpay based on an alleged overlong detail to the higher-graded
director position since his position description as deputy required
him to perform the director's duties on an acting basis. Employee's
service as acting director entailed performing responsibilities within
the scope of his regular position as deputy director and, therefore,
did not constitute a detail to the director position.
DECISION
The Director, Center for Personnel Operations, Social Security
Administration (SSA), forwards for our review the appeal of Mr. Martin
Kirchhausen from SSA's denial of his backpay claim. Mr. Kirchhausen
seeks backpay on the basis that he was detailed to a higher-graded
position beyond the agency-imposed limit of 30 days. For the reasons
stated hereafter, we affirm the agency's denial of the claim.
BACKGROUND
Mr. Kirchhausen was the GS-14, Deputy Director of the Communications
Management Office, Division of Integrated Telecommunications
Management (DITM). In that capacity and in accordance with his
position description, he assumed the duties of the director, DITM
during short-term absences of the director. In 1992, the incumbent
director, a GS-15, was selected as a Senior Executive Service
candidate. On October 1, 1992, she began her first long-term
assignment outside of DITM and Mr. Kirchhausen took over her duties as
director. Mr. Kirchhausen performed the duties of the director
through September 16, 1994, when he retired.
On December 7, 1994, Mr. Kirchhausen filed a claim with SSA for
backpay, asserting that his service as acting director after October
1, 1992, constituted an overlong detail to a higher-graded position
for which he should have received a temporary promotion and
compensation at the GS-15 level. He relied on a provision in the
Promotion Plan for SSA Headquarters Management Officials, PMS No. h16,
Chapter S335-2, October 18, 1992, which states in part:
"When an employee is temporarily assigned to a position at a
higher grade for a period in excess of 30 days, the assignment
must be made via temporary promotion, effective the first day
of the assignment, unless the employee does not meet the
qualifications standards or time-in-grade requirements for
promotion to the position."
On March 30, 1995, SSA denied the claim on the basis that Mr.
Kirchhausen performed his duties as acting director during the period
in accordance with the responsibilities of his position as deputy
director, which was designed as an "alter ego" to the director. The
agency pointed out that the position description for deputy director
states:
Basic Function
"Serves as full deputy and 'alter ego' to the Director,
Division of Communications. Shares responsibility with the
Director for collaboration in all functions of the Division's
programs including planning, formulating, adopting, and
executing policies, objectives, and goals relating to the
present and future operations. In the absence of the
Director, assures [sic] responsibility for division operations
and acts on any and all matters with full authority of
commitment on matters within the jurisdiction of the Division
Director."
The agency found, therefore, that Mr. Kirchhausen was not assigned to
a higher- graded position requiring a temporary promotion and
additional compensation.
Mr. Kirchhausen appeals the denial of his claim to our Office stating
that the length of time (almost 2 years) he performed the director
duties, coupled with the absence of the incumbent director for
long-term training, differentiates the claim period from other times
he assumed the director's duties and warrants backpay.
ANALYSIS AND CONCLUSION
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).
The first test is satisfied in this case. The SSA Promotion Plan
cited by the claimant explicitly requires that a detail to a
higher-graded position for a period in excess of 30 days be effected
by temporary promotion unless the employee does not meet the
qualifications or time-in-grade requirements for promotion to that
position. The agency has not questioned the claimant's eligibility
for a temporary promotion under the promotion policy if his service as
acting director constituted a detail to the director's position.
With respect to the second test, the claimant has the burden of
establishing that he or she was, in fact, detailed to a higher-graded
position. See, e.g., Dennis F. Morgan, B-203926, Sept. 22, 1981.
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.
Our decisions generally treat situations in which an employee's
position description requires the incumbent to assume the duties of a
higher-graded position as being distinguishable from a detail. See
Katie B. Keys, B-201946, June 16, 1981; Allen C. Howard, B-198393,
Mar. 17, 1981; and Charles E. Reardon, Jr., B-194694, Nov. 23, 1979.
But see Turner-Caldwell I, 55 Comp. Gen. 539 (1975). These decisions,
however, do not specifically discuss whether, or if so when, such a
situation might constitute a "detail" to the higher-graded position.
In the context of federal personnel law, a "detail" is the temporary
assignment of an employee to a different position involving duties
other than those the employee regularly performs. See, e.g., Forest
C. McKown, B-198120, Sept. 18, 1981. Therefore, in our judgment, an
employee's assumption of the duties of another position on an acting
basis when specifically required by the 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.
This is not an unusual situation. As we observed in Katie B. Keys,
supra:
"Provisions in position descriptions that incumbents substitute
for absent higher grade employees are not uncommon and they
usually have purposes quite apart from any consideration of
details . . .."
More generally, we noted in Forest C. McKown, supra:
"[T]here are innumerable instances in the government service
where employees of a lower classification perform duties of a
higher classification, but as a general rule an employee is
entitled only to the salary of the position to which he is
actually appointed, regardless of the duties he performs."
While the claimant maintains that the length of his service as acting
director warrants a different result in this case, his position
description imposed no time limit on his obligation to act as
director. Moreover, regardless of the duration, it is not clear how
his service as acting director departed significantly from his regular
duties as deputy. Based on a reading of his position description,
quoted above, it appears that he would have continued to perform
essentially his same duties as deputy during this period but without
sharing responsibility with a director.
Accordingly, we conclude that Mr. Kirchhausen's service during the
period in question did not constitute a detail to the director's
position, and we affirm SSA's denial of his claim.
/s/Seymour Efros
forRobert P. Murphy
General Counsel