BNUMBER:  B-271308
DATE:  April 18, 1996
TITLE:  Barnett K. Ragsdale

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Matter of:Barnett K. Ragsdale

File:     B-271308

Date:April 18, 1996

DIGEST

An employee who was subject to a 104-week waiting period before his 
next scheduled within-grade pay increase (WGI), erroneously received a 
WGI after just 5 months, and was overpaid for over 15 months until the 
agency discovered the error.  The denial of his request for waiver of 
the resulting debt is sustained.  Absent mitigating circumstances, 
employees are expected to know the waiting periods for WGIs.  In this 
case, at the time of the error, the employee had been employed by the 
agency for 6 years, during which he had experienced two 52-week and 
one 104-week waiting periods for WGIs, and there are no apparent 
factors that reasonably could have led him to believe he was entitled 
to the early WGI.

DECISION

Mr. Barnett K. Ragsdale, a secretary with the General Accounting 
Office (GAO), appeals our Claims Group's settlement, Z-2942893, Jan. 
30, 1996, denying his request for waiver of his $980 debt to the 
agency.  We affirm the settlement.

BACKGROUND

The agency promoted Mr. Ragsdale from a GS-6, step 5 position to a 
GS-7, step 5 position on September 19, 1993.  As a result, he was not 
eligible for his next within-grade increase (WGI) until September 
1995, after completing 2 years of service at the new pay rate.  
However, due to an administrative error, Mr. Ragsdale received a WGI 
(step 6 of GS-7) effective February 20, 1994,[1] just 5 months after 
his promotion.  As a result, he received erroneous salary payments 
until May 13, 1995, when the agency detected the error during a 
quality control review.  Mr. Ragsdale then was notified of the error 
and asked to refund the $980 in erroneous payments he had received.

Mr. Ragsdale asked the agency to waive collection of the debt, stating 
that he was not aware that he was being paid erroneously.  He also 
stated that he was unaware of how pay was computed upon a promotion 
and assumed that the increase he received in February was related to 
his promotion.  In its reply to this request, the agency noted that 
Mr. Ragsdale had been promoted twice since becoming employed by GAO in 
February 1988, and had experienced two 52-week waiting periods and one 
104-week waiting period for WGIs during his tenure at GAO.  The agency 
therefore concluded that Mr. Ragsdale had sufficient experience at the 
time he first received the erroneous WGI to have questioned why he was 
receiving a pay increase just 5 months after a promotion.  Since he 
had not done so, the agency denied his request for waiver.

Mr. Ragsdale then appealed the agency's decision to our Claims Group, 
asserting, in addition to his argument that his lack of experience in 
pay matters justified a waiver, that his case was similar to the case 
of another employee in which the agency had granted waiver.  In its 
report to the Claims Group, the agency noted that the other employee 
referred to by Mr. Ragsdale had only 2.5 years of experience, compared 
to his 6 years and had experienced only one 52-week waiting period for 
a WGI, compared to the two 52-week and one 104-week waiting periods 
experienced by Mr. Ragsdale.

The Claims Group settlement sustained the agency's denial based on the 
general rule that, absent mitigating circumstances, employees are 
expected to be aware of the federal pay structure and the fundamental 
requirements for pay increases.  With respect to the waiver granted 
the other employee, to which Mr. Ragsdale had referred, the Claims 
Group noted that each request for waiver must be decided on the basis 
of its own merits.

Mr. Ragsdale now requests reconsideration of the Claims Group 
settlement, asserting essentially the same grounds for waiver he 
asserted earlier:  first, that he had little knowledge of federal 
personnel matters and; second, that the agency waived the debt of a 
similarly situated employee.  He also states that for several years he 
has been confused by the leave and earnings statements he receives.

OPINION

The Comptroller General is authorized by 5 U.S.C.  sec.  5584 to waive 
claims arising out of erroneous payments of pay and allowances if 
collection "would be against equity and good conscience and not in the 
best interests of the United States," and there is no "indication of 
fraud, misrepresentation, fault, or lack of good faith" on the part of 
the employee seeking waiver.  See also the standards for waiver, 4 
C.F.R.  sec.  91.5 (1995).

In Mr. Ragsdale's case, the early granting of the WGI was due to 
administrative error, and there is no indication of fraud, fault, 
misrepresentation, fault, or lack of good faith on his part in that 
regard.  However, as to fault in regard to his receipt of the 
erroneous payments for 15 months, until they were discovered by the 
agency, we consider an employee to be at least partially at "fault" 
for receiving erroneous payments if, in light of all the 
circumstances, it is determined that the employee knew or should have 
known that an error existed, but failed to take action to have it 
corrected.  See Daniel J. Rendon, 68 Comp. Gen. 573 (1989); and 4 
C.F.R.  sec.  91.5(b).  The question then in Mr. Ragsdale's case is whether 
he should have been aware of the strong likelihood an error had been 
made when he received the erroneous WGI and should have brought the 
matter to the attention of appropriate agency officials.

As the Claims Group noted, employees are expected to have a general 
understanding of the federal pay system applicable to them, including 
the waiting periods between WGIs, and they are expected to question 
pay increases granted prior to the prescribed waiting periods.  Daniel 
J. Rendon, supra, and cases cited therein.  We have, however, 
recognized mitigating circumstances which warrant an exception.  For 
example, in Joyce G. Cook, B-222383, Oct. 10, 1986 (which is cited by 
Mr. Ragsdale), we granted waiver to an employee who erroneously 
received two promotions within 1 year (contrary to a rule requiring a 
least 1 year between promotions) where the first promotion occurred 
because her position was upgraded and there were ambiguous notations 
on her personnel documents which caused her to reasonably conclude 
that she was not subject to the 1-year rule.  In another case, Richard 
G. Anderegg, 68 Comp. Gen. 629 (1989), the employee was erroneously 
granted a WGI.  However, there we took note of the facts that the 
employee was a foreign national who had been hired overseas and had 
less than 2 years of experience as a federal employee.  We concluded 
that the employee's limited exposure to the federal personnel system 
warranted an exception to the general rule that he should be held 
responsible for knowing the applicable WGI waiting period, and we 
granted waiver of his debt.

In Mr. Ragsdale's case, there are no mitigating circumstances such as 
those in the Cook and Anderegg cases that warrant making an exception 
to the general rule noted above.  As the agency and the Claims Group 
noted, at the time the erroneous WGI was granted, Mr. Ragsdale had 
been employed for 6 years at GAO, during which time he received three 
WGIs, each requiring either a 52-week or 104-week waiting period.[2]  
He also had received a previous promotion, following which he been 
required to wait 1 year for his first WGI and 2 years for his second 
WGI.  We believe Mr. Ragsdale's length of service under the general 
schedule pay system and particularly his experience with WGIs and 
promotions should have alerted him to a possible problem with his pay 
when he received the erroneous WGI in February, only 5 months after 
his promotion, and prompted him to inquire about the matter with 
appropriate agency officials.  If he had done so, the error could have 
been corrected promptly and 15 months of overpayments would not have 
occurred.  While he states on appeal that he has been confused by his 
leave and earnings statements for several years, he acknowledges that 
he knew he received the WGI in February, but assumed it was related to 
his September 1994 promotion.  In view of his experience referred to 
above, he should have sought clarification, particularly if the leave 
and earnings statements he received did not explain the questionable 
pay increase.  In these circumstances, we conclude that Mr. Ragsdale 
is at least partially at fault in this matter.  This conclusion 
precludes waiver of his debt.  5 U.S.C.  sec.  5584(b)(1).

As for the waiver granted the other employee, to which Mr. Ragsdale 
refers, as the Claims Group noted, each case must be decided on its 
own merits.  See 4 C.F.R.  sec.  91.5(b).  In any event, the agency has 
noted significant differences between the two cases in the employees' 
length of service and experience with WGIs that justify the different 
outcomes.

Accordingly, the Claims Group's settlement is sustained.

/s/Lowell Dodge
for Robert P. Murphy
General Counsel

1. This was the date he would have reached eligibility for a WGI at 
the GS-6 level had he not received the promotion to GS-7 in September 
1993.

2. In addition, we note that he had two prior periods of federal 
service at other agencies, one period of which was for about 1 year 
and the other for about 6 years.