B-161400, JUL. 25, 1967

B-161400, JUL. 25, 1967

COMPENSATION - SEVERANCE PAY DECISION TO FORMER EMPLOYEE OF DEPT. OF LABOR WHO RESIGNED VOLUNTARILY RATHER THAN ACCEPT A TRANSFER TO ANOTHER LOCATION. SINCE RESIGNATION DID NOT ARISE FOLLOWING NOTICE OF SEPARATION NOT FOR CAUSE WITHIN MEANING OF SEC. 550.706, CSC REGULATIONS, IT MUST BE CONSIDERED VOLUNTARY AND THEREFORE EMPLOYEE IS NOT ENTITLED TO SEVERANCE PAY.

TO MR. HARDY L. COBB:

THIS IS IN REPLY TO YOUR LETTERS DATED APRIL 10, 1967, AND JUNE 12, 1967, REQUESTING A DECISION AS TO YOUR ENTITLEMENT TO SEVERANCE PAY UNDER SECTION 9 OF THE "FEDERAL EMPLOYEES SALARY ACT OF 1965," PUB. L. 89-301, APPROVED OCTOBER 29, 1965, 79 STAT. 1118.

A REPORT FROM THE DEPARTMENT OF LABOR INDICATES THAT YOU SERVED AS A WAGE -HOUR INVESTIGATOR IN VARIOUS GRADES FROM GS-7 TO GS-11 WITH THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR AT SEVERAL FIELD OFFICES IN THE MIDDLE WEST FROM AUGUST 1961 THROUGH NOVEMBER 1965. YOU SAY THAT IN OCTOBER 1965 YOU WERE INFORMED BY YOUR SUPERVISOR AT POPLAR BLUFFS, MISSOURI, THAT THE FIELD STATION THERE WOULD BE CLOSED INDEFINITELY AND THAT YOU WOULD BE TRANSFERRED INVOLUNTARILY TO ST. LOUIS, MISSOURI; ALSO, THAT YOUR SUPERVISOR STATED THAT YOU COULD EITHER TRANSFER TO ST. LOUIS, MISSOURI, OR RESIGN FROM THE SERVICE, AND THAT RATHER THAN ACCEPT A TRANSFER TO ST. LOUIS, MISSOURI, ALTHOUGH REQUEST WAS MADE TO TRANSFER TO ANOTHER LOCATION INSTEAD, YOU TENDERED YOUR RESIGNATION.

THE AGENCY REPORT STATES THAT YOU WERE HIRED WITH THE UNDERSTANDING THAT YOU WOULD BE SUBJECT TO TRANSFER TO ANY PART OF THE REGION. SUBSEQUENTLY, IT WAS PROPOSED TO TRANSFER YOU TO ST. LOUIS IN ORDER TO PROVIDE YOU WITH ADDITIONAL TRAINING AND SUPERVISION. HOWEVER, YOU RESIGNED VOLUNTARILY EFFECTIVE NOVEMBER 12, 1965, TO ACCEPT ANOTHER POSITION.

ON A STANDARD FORM 52, A REQUEST FOR PERSONNEL ACTION, EXECUTED ON OCTOBER 26, 1965, IN CONNECTION WITH YOUR RESIGNATION YOU SET FORTH THE FOLLOWING REASONS FOR YOUR CONTEMPLATED RESIGNATION:

"/1) I DO NOT FIND THIS TYPE OF WORK FULFILLING TO MY PERSONAL NEEDS.

"/2) I DO NOT WISH TO BE TRANSFERRED TO ST. LOUIS, MO. FIELD OFFICE.

"/3) I FEEL THAT OPPORTUNITY FOR PROMOTION IS QUITE LIMITED.

"/4) I DISAGREE, ON OCCASION AND IN PART, WITH VARIOUS ENFORCEMENT POLICIES.

"/5) I AM ACCEPTING A POSITION WITH THE UNIVERSITY OF MISSOURI, COOPERATIVE EXTENSION DIVISION, AS AN EXTENSION YOUTH AGENT, WHERE GRADUATE EDUCATION IS ENCOURAGED.

"/6) I DO NOT LOOK FORWARD TO, FOR THE REMAINDER OF A CAREER, FREQUENTLY BEING TRANSFERRED BETWEEN VARIOUS STATES, AND HAVING TO RESIDE IN A METROPOLITAN AREA.'

SECTION 9/C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUB. L. 89 301, APPROVED OCTOBER 29, 1965, 79 STAT. 1119 PROVIDES:

"9/C) AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED.'

SECTION 550.706 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, ISSUED PURSUANT TO DELEGATION OF AUTHORITY FROM THE PRESIDENT, PROVIDES AS FOLLOWS:

"RESIGNATION IN LIEU OF INVOLUNTARY SEPARATION.

(A) EXCEPT AS PROVIDED FOR IN PARAGRAPH (B) OF THIS SECTION, AN EMPLOYEE WHO IS SEPARATED BECAUSE OF RESIGNATION IS DEEMED TO HAVE BEEN INVOLUNTARILY SEPARATED FOR PURPOSES OF ENTITLEMENT TO SEVERANCE PAY, IF HE HAS NOT DECLINED AN OFFER OF AN EQUIVALENT POSITION UNDER SECTION 550.701/B) (2), WHEN HE IS SEPARATED BECAUSE OF RESIGNATION (I) AFTER RECEIVING A SPECIFIC NOTICE IN WRITING BY HIS DEPARTMENT THAT HE IS TO BE INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, (II) AFTER RECEIPT OF A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS DEPARTMENT WHICH ANNOUNCES THAT ALL POSITIONS IN HIS COMPETITIVE AREA WILL BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA AND HIS RESIGNATION IS EFFECTIVE ON A DATE WHICH IS NOT MORE THAN ONE YEAR BEFORE THE ABOLITION OR TRANSFER, AND (III) AFTER RECEIPT OF A NOTICE BY HIS DEPARTMENT PROPOSING TO SEPARATE HIM FOR DECLINING TO ACCOMPANY HIS POSITION WHEN IT IS TO BE MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION AND WHEN ALL POSITIONS IN HIS COMPETITIVE AREA ARE TO BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA WITHIN A PERIOD OF NOT MORE THAN ONE YEAR.

"/B) WHEN THE FACTS AND CIRCUMSTANCES AVAILABLE TO A DEPARTMENT SHOW THAT A RESIGNATION UNDER PARAGRAPH (A) OF THIS SECTION IS UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES SPECIFIED IN THAT PARAGRAPH, SEPARATION OF THE EMPLOYEE BY RESIGNATION IS A VOLUNTARY SEPARATION UNDER THE ACT.'

IN OUR DECISION B-159029, JUNE 17, 1966 (COPY ENCLOSED), WE POINTED OUT THAT A REMOVAL FOR FAILURE TO ACCEPT A REASSIGNMENT WHEN DIRECTED TO DO SO IS A REMOVAL FOR CAUSE AND THEREFORE DOES NOT COME WITHIN THE TERMS OF SECTION 9/C) ABOVE. THE SEVERANCE PAY PROVISION WAS DESIGNED TO PROVIDE FOR THE EMPLOYEE WHO WAS "SEPARATED THROUGH NO FAULT OF HIS OWN.' SEE HEARINGS BEFORE THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE ON FEDERAL PAY LEGISLATION, 89TH CONGRESS, 1ST SESSION, PAGE 31; HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON COMPENSATION OF COMMITTEE ON POST OFFICE AND CIVIL SERVICE, H.R. 8207, 89TH CONGRESS, 1ST SESSION, PAGES 35, 172; PRES. MSG. DOC. NO. 170, 89TH CONGRESS, 1ST SESSION, MAY 12, 1965, PAGE 4; H. REPT. NO. 792, 89TH CONGRESS, 1ST SESSION, AUGUST 16, 1965, PAGE 11.

CONCERNING CASES OF THIS TYPE THE CIVIL SERVICE COMMISSION HAS POINTED OUT THAT:

"* * * WHEN AN AGENCY FINDS IT NECESSARY TO ASSIGN AN EMPLOYEE TO A POSITION IN A DIFFERENT GEOGRAPHICAL LOCATION AND THE EMPLOYEE REFUSES TO ACCEPT THE NEW ASSIGNMENT, HIS SERVICE MAY BE TERMINATED. THIS IS CONSIDERED A DISCIPLINARY ACTION SINCE THE EMPLOYEE IS NOT DECLINING AN OFFER BUT IS REFUSING TO FOLLOW AN ORDER; IT IS CONSIDERED EQUIVALENT TO INSUBORDINATION. THEREFORE, THE EMPLOYEE IS SEPARATED BY REMOVAL FOR CAUSE UNDER THE GENERAL HEADING OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY- .'

SINCE YOUR RESIGNATION DID NOT ARISE FOLLOWING WRITTEN NOTICE OF A SEPARATION NOT FOR CAUSE WITHIN THE MEANING OF SECTION 550.706/A), IT MUST BE CONSIDERED AS A VOLUNTARY SEPARATION UNDER THE TERMS OF SECTION 550.706/B), AND THEREFORE NO ENTITLEMENT TO SEVERANCE PAY ARISES.