B-173426, SEP 12, 1972

B-173426, SEP 12, 1972

CIVILIAN EMPLOYEE - UNWARRANTED SEPARATION - DEDUCTIONS FROM BACK PAY DECISION REGARDING THE DISPUTE OF RITA M. DE FILIPPO ABOUT BACK PAY DUE AS A RESULT OF HER UNWARRANTED SEPARATION FROM FEDERAL EMPLOYMENT. CLAIMANT OBJECTS TO THE DEDUCTIONS MADE BY THE DEPARTMENT OF THE ARMY FOR HEALTH BENEFIT PREMIUMS AND FOR EARNINGS FROM OTHER EMPLOYMENT DURING THE PERIOD. IF CLAIMANT WAS NOT GIVEN THE OPTION PROVIDED IN FPMS 890-1, SUBCHAPTER S8-5A, OF HAVING HER PRIOR ENROLLMENT REINSTATED RETROACTIVE TO THE DATE OF SEPARATION OR OF ENROLLING IN THE PLAN OF HER CHOICE AS A NEW EMPLOYEE, THE OPTION SHOULD BE GRANTED HER AND APPROPRIATE ADJUSTMENTS MADE. FURTHER, THE RECORD INDICATES THAT CLAIMANT UNDERTOOK PART-TIME EMPLOYMENT BECAUSE OF THE IMPENDING SEPARATION AND, THEREFORE, THE AMOUNT OF EARNINGS FROM THAT EMPLOYMENT WERE PROPERLY DEDUCTED. SEE FPM, BOOK 550, SUBCHAPTER 8-5E.

TO MISS RITA M. DE FILIPPO:

WE REFER TO YOUR LETTER OF JUNE 23, 1972, INDICATING YOUR DISAGREEMENT WITH THE ACTION OF THE DEPARTMENT OF THE ARMY IN COMPUTING THE AMOUNT OF BACK PAY TO WHICH YOU ARE ENTITLED AS A RESULT OF YOUR UNWARRANTED SEPARATION FROM FEDERAL EMPLOYMENT. YOU OBJECT TO BOTH THE DEDUCTION OF HEALTH BENEFIT PREMIUMS AND THE DEDUCTION OF EARNINGS FROM OTHER EMPLOYMENT DURING THE PERIOD OF YOUR SEPARATION.

IN REGARD TO THE AMOUNT DEDUCTED FOR HEALTH BENEFIT PREMIUMS, YOU INDICATE THAT YOU WERE NOT GIVEN THE OPTION PROVIDED FOR IN FEDERAL PERSONNEL MANUAL, SUPPLEMENT 890-1, SUBCHAPTER S8-5A OF HAVING YOUR PRIOR ENROLLMENT REINSTATED RETROACTIVE TO THE DATE YOUR EMPLOYMENT WAS TERMINATED OR OF ENROLLING IN THE PLAN OR OPTION OF YOUR CHOICE THE SAME AS A NEW EMPLOYEE. WE ARE ADVISING THE DEPARTMENT OF THE ARMY BY LETTER OF THIS DATE THAT IF YOU HAVE NOT BEEN AFFORDED THAT OPTION, IT IS TO BE MADE AVAILABLE TO YOU AT THIS TIME AND THAT APPROPRIATE ADJUSTMENTS MAY BE MADE.

ALL OUTSIDE EARNINGS DURING THE PERIOD OF YOUR SEPARATION WERE DEDUCTED IN THE COMPUTATION OF YOUR BACK PAY. IN OUR LETTER B-173426, AUGUST 27, 1971, TO MR. R. E. LAGO, FINANCE AND ACCOUNTING OFFICER, A COPY OF WHICH WAS FURNISHED YOUR ATTORNEY, WE STATED:

"*** THAT IN SITUATIONS SUCH AS MISS DE FILIPPO'S WHERE THE PART TIME EMPLOYMENT IS ON AN 'AS AVAILABLE' BASIS, IT WOULD BE APPROPRIATE TO ASCERTAIN THE EMPLOYEE'S AVERAGE MONTHLY EARNINGS ATTRIBUTABLE TO THE PART -TIME EMPLOYMENT PRIOR TO THE SEPARATION AND DEDUCT FROM BACK PAY ONLY THE AMOUNT BY WHICH EMPLOYEE'S MONTHLY EARNINGS FROM THAT CONTINUED EMPLOYMENT SUBSEQUENT TO SEPARATION EXCEED THE FORMER FIGURE."

OUR INDICATION THAT A DETERMINATION OF YOUR ENTITLEMENT ON SUCH BASIS WOULD BE PROPER WAS WRITTEN IN RESPONSE TO THE CERTIFYING OFFICER'S REQUEST TO BE ADVISED WHETHER EARNINGS DURING THE PERIOD OF SEPARATION FROM CONTINUED EMPLOYMENT ON AN "AS AVAILABLE" BASIS DURING THE REGULAR WORKING HOURS CONSTITUTE EARNINGS FROM OUTSIDE EMPLOYMENT. WE WERE NOT AWARE UNTIL ADVISED BY COPY OF YOUR ATTORNEY'S LETTER OF JANUARY 24, 1972, ADDRESSED TO MR. R. E. LAGO, THAT YOU UNDERTOOK THE PART-TIME EMPLOYMENT BECAUSE OF YOUR IMPENDING SEPARATION. WE NOW UNDERSTAND THAT YOUR PART- TIME EMPLOYMENT IN FACT PREDATED YOUR SEPARATION BY ONLY TWO WEEKS. THIS IS INDICATED ON THE STATEMENT OF EARNINGS FURNISHED BY YOUR ATTORNEY. UNDER THESE CIRCUMSTANCES WE CONCUR WITH THE DEPARTMENT OF THE ARMY'S CONCLUSION THAT YOUR EARNINGS DURING THE PERIOD OF YOUR SEPARATION WERE IN FACT FROM EMPLOYMENT WHICH TOOK THE PLACE OF YOUR TERMINATED FEDERAL EMPLOYMENT AND AS SUCH PROPERLY DEDUCTIBLE FROM BACK PAY.

IN REGARD TO FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER 8, SUBPARAGRAPH F, YOUR ATTORNEY STATES IN HIS JANUARY 24, 1972, LETTER:

"THE INFORMATION WHICH IS INCLUDED HEREWITH TAKES INTO CONSIDERATION SUB. PARAGRAPH F OF THE REGULATIONS WHICH WE HAVE BEEN QUOTING, WHICH PERMITS AN EMPLOYEE TO TAKE A PART TIME JOB EVEN IN THE FACE OF A SEPARATION WHICH IS ABOUT TO BE CONSUMMATED, AND YET THAT PART TIME JOB IS NOT TO BE CONSIDERED AGAINST THE EMPLOYEE'S RIGHT TO COMPENSATION."

WE DO NOT SO INTERPRET THAT REGULATION. THE LANGUAGE OF SUBPARAGRAPH F, CITED ABOVE, IS A FURTHER IMPLEMENTATION OF FEDERAL PERSONNEL MANUAL, BOOK 550, SUBCHAPTER 8-5E. THAT SUBCHAPTER PROVIDES AS FOLLOWS:

"E. DEDUCTIONS. THE AGENCY SHALL DEDUCT THE AMOUNTS EARNED BY THE EMPLOYEE FROM OTHER EMPLOYMENT DURING THE PERIOD COVERED BY THE CORRECTED PERSONNEL ACTION, BUT SHALL INCLUDE AS OTHER EMPLOYMENT ONLY THAT EMPLOYMENT ENGAGED IN BY THE EMPLOYEE TO TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. FOR EXAMPLE, WHEN AN EMPLOYEE HAD OUT SIDE EMPLOYMENT BEFORE HIS GOVERNMENT SEPARATION (SUCH AS EVENING WORK AS A CAB DRIVER), THE AMOUNTS EARNED FROM THE CONTINUATION OF THAT EVENING WORK AFTER SEPARATION ARE NOT DEDUCTIBLE. BUT ANY DAYTIME EARNINGS FROM CAB DRIVING OR ANY OTHER EMPLOYMENT ENGAGED IN TO TAKE THE PLACE OF THE GOVERNMENT EMPLOYMENT ARE DEDUCTIBLE."

THE LANGUAGE QUOTED ABOVE RELATING TO EARNINGS FROM THE CONTINUATION OF AN EMPLOYEE'S OUTSIDE EMPLOYMENT WHICH HE HAD BEFORE SEPARATION IS INCLUDED AS ILLUSTRATIVE OF EMPLOYMENT DURING THE PERIOD OF SEPARATION WHICH DOES NOT TAKE THE PLACE OF THE EMPLOYMENT FROM WHICH THE EMPLOYEE WAS SEPARATED. WHERE, AS IN YOUR SITUATION, THE EMPLOYMENT ON A PART TIME BASIS WAS UNDERTAKEN BECAUSE OF AN IMPENDING SEPARATION AND FOR THE DISTINCT PURPOSE OF REPLACING INCOME WHICH WOULD BE LOST AS A RESULT OF THAT SEPARATION, EARNINGS FROM THAT EMPLOYMENT DURING SEPARATION ARE NEVERTHELESS DEDUCTIBLE.

FOR THE ABOVE REASONS WE CONCUR IN THE DEPARTMENT OF THE ARMY'S DEDUCTION FROM BACK PAY OF AMOUNTS EARNED THROUGH YOUR PART-TIME EMPLOYMENT DURING THE PERIOD OF YOUR SEPARATION.