B-212376 OM, FEB 9, 1984

B-212376 OM, FEB 9, 1984

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MR. PAUL S. JOHN FOR SEVERANCE PAY FOR YOUR CONSIDERATION.

IN AUGUST 1982, MR. JOHN WAS EMPLOYED BY THE U.S. DEPARTMENT OF AGRICULTURE (USDA), FEDERAL GRAIN INSPECTION SERVICE, DENVER FIELD OFFICE, AS AN AGRICULTURAL COMMODITY GRADER, GS-9. IN A LETTER DATED AUGUST 2, 1982, FROM USDA, HE WAS ADVISED THAT THE DENVER FIELD OFFICE WAS BEING CLOSED, AND THE FUNCTIONS OF THAT OFFICE WERE BEING TRANSFERRED TO THE MOSCOW, IDAHO, AND THE WICHITA, KANSAS FIELD OFFICES. HE WAS OFFERED A POSITION AT HIS SAME GRADE AND TITLE AT THE WICHITA, KANSAS FIELD OFFICE, TO BEGIN SEPTEMBER 5, 1982. HE DECLINED THE OFFER OF REASSIGNMENT AND WAS DENIED SEVERANCE PAY FOR REFUSING TO ACCEPT A REASSIGNMENT OUTSIDE OF HIS COMMUTING AREA.

USDA ADVISED HIM THAT 5 CFR 550.705 PROVIDES THAT, "WHEN AN EMPLOYEE IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA, THE SEPARATION IS AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY, UNLESS HIS POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES FOR THESE REASSIGNMENTS." THEY STATED THAT WRITTEN EVIDENCE OF HIS UNDERSTANDING TO ACCEPT REASSIGNMENTS THROUGHOUT HIS CAREER AS AN AGRICULTURAL COMMODITY GRADER IS FOUND ON PAGE 7 OF THE JOB ANNOUNCEMENT NO. CH-5-08, ISSUED OCTOBER 1975, AND ON HIS PRESENT POSITION DESCRIPTION.

MR. JOHN CONTENDS THAT WHEN HE WAS RECRUITED FOR THE GS-5 POSITION, HE WAS NOT ADVISED THAT HIS ACCEPTANCE OF THE POSITION WOULD SUBJECT HIM TO REASSIGNMENTS TO DIFFERENT GEOGRAPHICAL AREAS THROUGHOUT HIS CAREER AS AN AGRICULTURAL COMMODITY GRADER; NO MENTION OF REASSIGNMENTS WAS MADE IN HIS GS-5 POSITION DESCRIPTION; AND HE CITES SECTION S11-2E OF THE FEDERAL PERSONNEL MANUAL (FPM), SUPPLEMENT 831-1, DATED SEPTEMBER 21, 1981, AS EVIDENCE THAT WHEN A MOBILITY AGREEMENT IS ATTACHED TO AN EMPLOYEE'S POSITION DESCRIPTION AFTER HE HAS BEEN APPOINTED TO THE POSITION, DECLINATION OF A REASSIGNMENT TO A DIFFERENT GEOGRAPHICAL AREA IS AN INVOLUNTARY SEPARATION.

QUESTIONS

1. DOES THE REFERENCE TO REASSIGNMENTS THROUGHOUT AN APPOINTEE'S CAREER AS AN AGRICULTURAL COMMODITY GRADER ON PAGE 7 OF THE JOB ANNOUNCEMENT AND ON MR. JOHN'S GS-9 POSITION DESCRIPTION CONSTITUTE "WRITTEN UNDERSTANDING" WITHIN THE MEANING OF 5 CFR 550.705, IN THE ABSENCE OF A SIGNED MOBILITY AGREEMENT?

2. IS MR. JOHN ENTITLED TO SEVERANCE PAY?

ACCORDINGLY, WE ARE FORWARDING THE MATTER FOR YOUR ADVICE ON SETTLEMENT.

FEBRUARY 9, 1984

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. MR. JOHN HAS SUBMITTED A CLAIM FOR PAYMENT OF SEVERANCE PAY IN CONNECTION WITH HIS SEPARATION FROM EMPLOYMENT WITH THE DEPARTMENT OF AGRICULTURE, FEDERAL GRAIN INSPECTION SERVICE (THE AGENCY). THE RECORD SHOWS THAT AT THE TIME OF HIS SEPARATION HE HAD BEEN EMPLOYED WITH THE DENVER FIELD OFFICE AS AN AGRICULTURAL COMMODITY GRADER (GRAIN) GS-1980- 9. HE WAS SEPARATED FROM GOVERNMENT SERVICE EFFECTIVE SEPTEMBER 4, 1982, AFTER HAVING DECLINED TO ACCEPT A REASSIGNMENT TO AN EQUIVALENT POSITION IN THE WICHITA, KANSAS FIELD OFFICE INCIDENT TO A TRANSFER OF FUNCTION. MR. JOHN'S SEPARATION WAS INVOLUNTARY SO THAT HE IS ENTITLED TO THE PAYMENT OF SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595.

BY LETTER DATED SEPTEMBER 27, 1982, THE AGENCY ADVISED MR. JOHN THAT IT HAD DETERMINED THAT HE WAS NOT ENTITLED TO SEVERANCE PAY SINCE THERE WAS WRITTEN EVIDENCE OF AN UNDERSTANDING THAT HE WAS SUBJECT TO REASSIGNMENT. THE AGENCY STATED THAT HIS POSITION DESCRIPTION AS AN AGRICULTURAL COMMODITY GRADER (GRAIN), GS-1980-9, INCLUDED LANGUAGE STIPULATING THAT EMPLOYEES ARE SUBJECT TO REASSIGNMENT. IN ADDITION THE AGENCY CITED ANNOUNCEMENT NO. CH-5-08 ISSUED OCTOBER 5, 1975, CAREERS AS AGRICULTURAL COMMODITY GRADERS, WHICH CONTAINS A STATEMENT ON PAGE 7 THAT APPOINTEES TO AGRICULTURAL COMMODITY GRADER POSITIONS ARE SUBJECT TO GEOGRAPHICAL REASSIGNMENTS. THE AGENCY CONCLUDED THAT THE POSITION DESCRIPTION AND THE ANNOUNCEMENT CONSTITUTE WRITTEN EVIDENCE OF AN UNDERSTANDING THAT MR. JOHN WAS SUBJECT TO REASSIGNMENT TO ANOTHER COMMUTING AREA WITHIN THE MEANING OF 5 C.F.R. SEC. 550.705.

SECTION 550.705 OF TITLE 5, CODE OF FEDERAL REGULATIONS (1982), PROVIDES AS FOLLOWS REGARDING ENTITLEMENT TO RECEIVE SEVERANCE PAY.

"FAILURE TO ACCEPT ASSIGNMENT.

"WHEN AN EMPLOYEE IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA, THE SEPARATION IS AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY, UNLESS HIS POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES FOR THESE ASSIGNMENTS."

MR. JOHN CONTENDS THAT HIS SEPARATION WAS INVOLUNTARY SINCE, IN HIS VIEW, THERE WAS NO UNDERSTANDING REGARDING HIS REASSIGNMENT TO ANOTHER COMMUTING AREA. IN SUPPORT OF HIS POSITION MR. JOHN STATES THAT HE DID NOT SIGN A MOBILITY AGREEMENT AND THAT HE HAD NOT BEEN AWARE OF THE EXISTENCE OF ANNOUNCEMENT NO. CH-5-08 WHICH STATED THAT APPOINTEES ARE SUBJECT TO GEOGRAPHICAL TRANSFER. FURTHERMORE, HE STATES THAT EXCEPT FOR HIS MOST RECENT POSITION DESCRIPTION, DATED MARCH 3, 1981, NONE OF THE POSITION DESCRIPTIONS FOR THE GRADE GS-5, 7, AND 9 AGRICULTURAL COMMODITY GRADER POSITIONS HE OCCUPIED CONTAINED A PROVISION CONCERNING GEOGRAPHIC MOBILITY. HE DISAGREES WITH THE AGENCY'S RELIANCE ON THE MARCH 1981 POSITION DESCRIPTION AND ASSERTS THAT FOR THE PURPOSE OF DETERMINING WHETHER HIS SEPARATION WAS INVOLUNTARY THE PERTINENT PROVISIONS ARE THOSE CONTAINED IN THE DESCRIPTION OF THE POSITION TO WHICH HE WAS INITIALLY APPOINTED. IN SUPPORT OF THIS ARGUMENT HE REFERS TO SUBCHAPTER S11-2(E) OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1 WHICH DEFINES THE TERM "INVOLUNTARY SEPARATION" FOR PURPOSES OF DISCONTINUED SERVICE RETIREMENT ELIGIBILITY. WITH AN EXCEPTION NOT APPLICABLE IN MR. JOHN'S CASE, THAT SECTION PROVIDES THAT IF A MOBILITY AGREEMENT IS ADDED TO AN EMPLOYEE'S POSITION DESCRIPTION AFTER HE ACCEPTS A POSITION HE WILL BE CONSIDERED INVOLUNTARILY SEPARATED IF HE SUBSEQUENTLY DECLINES REASSIGNMENT TO A POSITION OUTSIDE OF HIS COMMUTING AREA.

YOU ASK WHETHER THE STATEMENTS IN THE POSITION DESCRIPTION DATED MARCH 3, 1981, AND THE CITED ANNOUNCEMENT CONSTITUTE A WRITTEN UNDERSTANDING WITHIN THE MEANING OF 5 C.F.R. SEC. 550.705 IN THE ABSENCE OF A SIGNED MOBILITY AGREEMENT.

THE AGENCY HAS NOT DISPUTED MR. JOHN'S STATEMENT THAT HIS POSITION DESCRIPTIONS PRIOR TO MARCH 3, 1981, INCLUDING THAT OF THE GRADE GS-9 AGRICULTURAL COMMODITY GRADER POSITION HE HAD OCCUPIED, DID NOT CONTAIN ANY PROVISION REQUIRING GEOGRAPHICAL RELOCATION. IN HOLDING THAT AN EMPLOYEE WAS "INVOLUNTARILY SEPARATED" FOR PURPOSES OF ENTITLEMENT TO A DISCONTINUED SERVICE RETIREMENT THE COURT OF CLAIMS HAS RECOGNIZED THAT: "AN INDIVIDUAL WHO ACCEPTS FEDERAL EMPLOYMENT DOES NOT CONTEMPLATE ROTATIONAL ASSIGNMENT, OCCUPATIONAL AND/OR GEOGRAPHIC, UNLESS THE JOB DESCRIPTION SO SPECIFIES" PATTERSON V. UNITED STATES, 193 CT.CL. 750 AT 758 (1971). IN PATTERSON THE COURT RELIED IN PART ON BROWNING V. UNITED STATES, 179 CT.CL. 439 (1957) WHEREIN THE COURT STATED AT PAGE 446 AS FOLLOWS:

"*** IT IS THE TRUE SUBSTANCE OF THE ACTION WHICH GOVERNS RATHER THAN THE METHODS FOLLOWED OR THE TERMINOLOGY USED, AND THAT THE TERM 'INVOLUNTARY SEPARATION' MEANS ANY SEPARATION AGAINST THE WILL AND WITHOUT THE CONSENT OF THE EMPLOYEE."

CONSISTENT WITH THE HOLDING IN PATTERSON, CITED ABOVE, FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, SUBCH. S11-2E PROVIDES AS FOLLOWS:

"E. REASSIGNMENT DIRECTED OUT OF COMMUTING AREA. THE SEPARATION OF AN EMPLOYEE WHO RECEIVES A NOTICE THAT HIS OR HER REASSIGNMENT IS BEING DIRECTED OUTSIDE THE COMMUTING AREA OF HIS OR HER CURRENT WORKSITE (OR WHICH NEWLY REQUIRES A TOUR OR TOURS OF DUTY OUTSIDE THE COMMUTING AREA OF HIS OR HER CURRENT WORKSITE) IS CONSIDERED INVOLUNTARY, NOT FOR CAUSE, FOR RETIREMENT PURPOSES PROVIDED THE POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING AT THE TIME OF APPOINTMENT DOES NOT PROVIDE FOR SUCH REASSIGNMENTS. IF, AFTER AN EMPLOYEE ACCEPTS A POSITION, A MOBILITY AGREEMENT IS ADDED TO HIS OR HER POSITION DESCRIPTION, HE OR SHE WILL BE CONSIDERED INVOLUNTARILY SEPARATED IF HE OR SHE SUBSEQUENTLY DECLINES REASSIGNMENT TO A POSITION OUTSIDE OF HIS OR HER COMMUTING AREA. ***"

WHILE THE ABOVE GUIDANCE IS FOR APPLICATION IN DETERMINING ENTITLEMENT TO DISCONTINUED SERVICE RETIREMENT WE SEE NO REASON TO APPLY A DIFFERENT STANDARD IN DETERMINING WHAT CONSTITUTES AN "INVOLUNTARY SEPARATION" FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY. THIS APPROACH IS CONSISTENT WITH THE VIEW THAT THE SEVERANCE PAY PROVISION AT 5 U.S.C. SEC. 5595 IS TO BE GIVEN "A LIBERAL AND GENEROUS CONSTRUCTION." SPRING V. UNITED STATES, 492 F.2D 1053 AT 1054 (4TH CIR. 1974). WE HAVE INFORMALLY DETERMINED THAT THE OFFICE OF PERSONNEL MANAGEMENT INTERPRETS 5 C.F.R. SEC. 550.705 IN A MANNER CONSISTENT WITH THE ABOVE-QUOTED GUIDANCE AT SUBCH. S11-2E OF FPM SUPPLEMENT 831-1. A MOBILITY PROVISION IN A POSITION DESCRIPTION IS VIEWED BY THAT OFFICE AS AFFECTING THE NATURE OF THE EMPLOYEE'S SEPARATION FOR PURPOSES OF SEVERANCE PAY ONLY IF THE MOBILITY PROVISION APPEARED IN HIS POSITION DESCRIPTION AT THE TIME OF APPOINTMENT.

IN VIEW OF THE ABOVE-CITED COURT CASES AND THE POSITION OF THE OFFICE OF PERSONNEL MANAGEMENT, WE INTERPRET 5 C.F.R. SEC. 550.705 AS MEANING THAT A REFUSAL TO ACCEPT AN ASSIGNMENT TO ANOTHER COMMUTING AREA WILL BE CONSIDERED TO BE AN INVOLUNTARY SEPARATION UNLESS THE EMPLOYEE'S POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING AT THE TIME OF APPOINTMENT PROVIDES FOR REASSIGNMENT. SINCE THE AGENCY HAS NOT DISPUTED MR. JOHN'S CONTENTION THAT HIS POSITION DESCRIPTION AT THE TIME OF APPOINTMENT DID NOT CONTAIN A PROVISION REQUIRING GEOGRAPHIC RELOCATION THE ADDITION OF SUCH A PROVISION TO HIS REVISED POSITION DESCRIPTION WOULD NOT AFFECT THE INVOLUNTARY NATURE OF HIS SEPARATION.

CONCERNING THE STATEMENT IN ANNOUNCEMENT NO. CH-5-08 REGARDING GEOGRAPHICAL REASSIGNMENTS OF AGRICULTURAL COMMODITY GRADERS, MR. JOHN ASSERTS THAT HE WAS NOT AWARE OF THE ANNOUNCEMENT UNTIL AFTER HIS SEPARATION. THE AGENCY HAS NOT CLAIMED THAT MR. JOHN WAS PROVIDED A COPY OF THE ANNOUNCEMENT OR ADVISED OF ITS CONTENTS AT THE TIME OF HIS RECRUITMENT AND SUBSEQUENT APPOINTMENT. UNDER THE CIRCUMSTANCES, WE DO NOT VIEW THE ANNOUNCEMENT AS HAVING ANY EFFECT ON THE INVOLUNTARY NATURE OF MR. JOHN'S SEPARATION.

IN ACCORDANCE WITH THE ABOVE, MR. JOHN'S SEPARATION FROM GOVERNMENT SERVICE IS CONSIDERED INVOLUNTARY AND, THEREFORE, HE IS ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595.