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B-185312 1 (1976-07-21)

handle is hein.gao/gaobadcwf0001 and id is 1 raw text is: THE COMPTROL..-ER GENERAL DECISION . . A OF THE UNITED STATES / WASHINGTON, D.C. 20548 ttlJUL 2 1 1976 FILE: DATE: B -185312, MATTER OF: Harold P. Sipperly - Retroactive promotion - Backpay DIGEST: Employee's position was regraded from GS-12 to 13 incident to an agency position classi- fication audit. Agency must promote quali- fied employee within a reasonable time or remove him from the position. Here agency delayed such action for over a year before promoting the employee to the grade GS-13. Employee is entitled to retroactive promotion. Ms. Orris C. Huet, an authorized certifying officer, United States Department of Agriculture, submitted for decision the claim of Mr. Harold P. Sipperly for backpay representing the difference in salary between grade GS-12, step 9, and grade GS-13, step 5, for the period May 10, 1974, to May 25, 1975. The essential facts are not in dispute. Mr. Sipperly was employed as a Mechanical Engineer grade GS-830-12. His position was audited by the agency in March 1974 and was classified to grade GS-830-13, on May 10, 1974. Mr. Sipperly continued to occupy the position and was promoted to the grade GS-13 level on May 25, 1975. The agency regulations, Department of Agriculture Personnel Manual, DPM 277, 2-2d require that when an employee is performing the duties of a position when it is reclassified, a personnel action must be taken within 30 days of the classifica- tion effective retroactive to the earliest legal date. In this case such date is indicated to be May 12, 1974, the beginning of the next pay period after the classification. The agency regula* tions also provide a procedure to remove the employee when he is not to be promoted to the higher grade of the position. Agency procedure was not followed. Although the record indicates some doubt by management as to employee's ability to perform fully the duties of the higher grade, there is no showing that the employee was other than fully qualified to be promoted. The agency feels that it does not have authority to make a retroactive promotion in the circumstances. For the following reasons we hold that it does.

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