What happens when a federal employee is terminated before actually receiving a promotion, and then is requesting to be retro-actively paid as if the promotion occurred.
In addressing complainant’s concerns, we initially note that in its original submission to the Commission, the agency established that the pay grade salary for complainant on June 25, 1990, the date of his termination
was at the PG-3 level and that this was the pay grade salary level used by the agency in calculating the sums due complainant through April 5, 1993, the date complainant was rehired and again placed on the payroll by the agency.
Complainant requests back pay based on speculative promotion
We next address complainant’s assertion that his back pay award should have included compensation for any promotion which he would have obtained had he not been terminated.
We note that the agency found that there were no non-competitive promotions available during complainant’s absence.
How to calculate back pay without evidence of a promotion?
While Commission regulations define back pay as including promotions that complainant would have earned but for the discrimination, the only promotions identified involved competitive selections to positions in a different job series. The agency properly determined that it was entirely speculative whether complainant would have been chosen for such a competitive position. Thus, we find that the agency’s calculation of back pay entirely at the PG-3 level, which was complainant’s pay grade salary level as of June 25, 1990, was appropriate because there was inadequate evidence to establish that he would have been promoted.
