B-164103, MAY 13, 1968

B-164103: May 13, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

JR.: THIS IS IN REPLY TO YOUR LETTER OF MARCH 14. IT APPEARS THAT FOLLOWING A REORGANIZATION YOUR POSITION WAS ABOLISHED AND YOU WERE OFFERED A POSITION OF LIKE TENURE AS SUPERVISOR. AIR FORCE TRAINING COMMAND DETERMINED THAT YOU WERE NOT ENTITLED TO SEVERANCE PAY AND YOU WERE SEPARATED INCIDENT TO A REDUCTION-IN-FORCE. YOU POINT OUT THAT YOUR YEARS OF FEDERAL SERVICE HAVE BEEN SATISFACTORY OR BETTER AND YOU WOULD HAVE NORMALLY RECEIVED A NUMBER OF STEP INCREASES AS A GS-8. OVER THE YEARS UNTIL YOUR RETIREMENT AT AGE 65 THIS WOULD HAVE RESULTED IN A CONSIDERABLE DIFFERENCE IN PAY. UNDER THE CIRCUMSTANCES YOU FEEL THAT YOU ARE ENTITLED TO SEVERANCE PAY AND INQUIRE AS TO HOW YOU MAY APPEAL FROM OUR DECISION IF WE CONSIDER THAT THE DENIAL WAS IN ACCORDANCE WITH THE LAW.

B-164103, MAY 13, 1968

TO MR. GEORGE W. PECK, JR.:

THIS IS IN REPLY TO YOUR LETTER OF MARCH 14, 1968, REGARDING ENTITLEMENT TO SEVERANCE PAY ARISING FROM THE SEPARATION FROM YOUR POSITION ON FEBRUARY 26, 1968, AS CHIEF, PROGRAMS AND PROCEDURES SECTION, GS-8, STEP 2, AT $7,630 PER ANNUM AT MOODY AIR FORCE BASE, GEORGIA.

IT APPEARS THAT FOLLOWING A REORGANIZATION YOUR POSITION WAS ABOLISHED AND YOU WERE OFFERED A POSITION OF LIKE TENURE AS SUPERVISOR, DATA MANAGEMENT UNIT, GS-6, STEP 9, AT $7,777 PER ANNUM. UPON YOUR FAILURE TO ACCEPT THE OFFERED POSITION HEADQUARTERS, AIR FORCE TRAINING COMMAND DETERMINED THAT YOU WERE NOT ENTITLED TO SEVERANCE PAY AND YOU WERE SEPARATED INCIDENT TO A REDUCTION-IN-FORCE.

YOU POINT OUT THAT YOUR YEARS OF FEDERAL SERVICE HAVE BEEN SATISFACTORY OR BETTER AND YOU WOULD HAVE NORMALLY RECEIVED A NUMBER OF STEP INCREASES AS A GS-8, STEP 2, THAT YOU WOULD BE DEPRIVED OF AS A GS-6, STEP 9. OVER THE YEARS UNTIL YOUR RETIREMENT AT AGE 65 THIS WOULD HAVE RESULTED IN A CONSIDERABLE DIFFERENCE IN PAY.

UNDER THE CIRCUMSTANCES YOU FEEL THAT YOU ARE ENTITLED TO SEVERANCE PAY AND INQUIRE AS TO HOW YOU MAY APPEAL FROM OUR DECISION IF WE CONSIDER THAT THE DENIAL WAS IN ACCORDANCE WITH THE LAW.

IN SECTION 550.701 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS RELATING TO SEVERANCE PAY (5 CFR 550.701) IT PROVIDES THAT AN EMPLOYEE WHO IS OFFERED AND DECLINES TO ACCEPT AN EQUIVALENT POSITION IN HIS DEPARTMENT IN THE SAME COMMUTING AREA IS NOT ENTITLED TO SEVERANCE PAY. EQUIVALENT POSITION IS DEFINED AS ONE OF LIKE SENIORITY, TENURE AND PAY. AS WE POINTED OUT IN OUR DECISION B-163506, MARCH 8, 1968 (COPY ENCLOSED) THE TERM "SENIORITY" REFERS PRIMARILY TO THE POSTAL SERVICE. SEE 39 U.S.C. 3334 AND 3337.

"TENURE" HAS RELATION TO THE EXPECTATION OF PERMANENCY OF THE EMPLOYMENT ON THE PART OF THE EMPLOYEE AND THE RECORD INDICATES THAT THE OFFERED POSITION WAS OF LIKE TENURE WITH YOUR FORMER JOB. SEE 5 CFR 210.101 (15).

THERE IS NO QUESTION BUT THAT THE PAY OF THE OFFERED POSITION EXCEEDED THAT OF THE PRIOR POSITION. AS WE INDICATED IN B-163506, ABOVE,"WE REGARD THE WORD -PAY- AS RELATING ONLY TO SALARY RATES AT THE TIME THE OFFER IS MADE AND NOT TO POTENTIAL INCREASES IN THE SALARY RATES OF POSITIONS BEING COMPARED FOR EQUIVALENT PURPOSES.'

THE VIEWS OF THE CIVIL SERVICE COMMISSION AS TO WHAT CONSTITUTES AN OFFER OF AN EQUIVALENT POSITION ARE CLEARLY SPELLED OUT IN THE EXAMPLE SET OUT IN FPM SUPPLEMENT 990-2, SECTION 550 (S7-2B (2) (C) (I) ):

"/I) * * * AN EMPLOYEE IS EMPLOYED AS A CLERK-TYPIST GS-4 ($4,776) IN SAN DIEGO. THE INSTALLATION WHERE SHE WORKS IS CLOSED AND THE FUNCTION TRANSFERRED TO ANOTHER INSTALLATION, ALSO IN SAN DIEGO. THE EMPLOYEE IS OFFERED THE POSITION OF CLERK-TYPIST GS-3, RATE 5 ($4,845) AND DECLINES. SHE IS NOT ENTITLED TO SEVERANCE PAY BECAUSE SHE DECLINED AN EQUIVALENT POSITION IN HER COMMUTING AREA.'

UNDER THE FOREGOING CIRCUMSTANCES, IT APPEARS THAT THE OFFER OF A CONTINUING JOB AT A HIGHER RATE OF PAY WITH NO CHANGE IN YOUR TENURE GROUP SATISFIED THE REQUIREMENTS AS TO AN EQUIVALENT POSITION. HAVING RESIGNED FOLLOWING THE OFFER OF AN EQUIVALENT POSITION YOU ARE NOT ENTITLED TO SEVERANCE PAY.

CONCERNING YOUR REQUEST FOR INFORMATION REGARDING A FURTHER APPEAL IN THE EVENT OF OUR ADVERSE DECISION, YOU ARE ADVISED THAT UNDER THE LAW THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. 31 U.S.C. 44 AND 74. WHILE THERE IS NO PROCEDURE FOR APPEALING FROM SUCH DECISIONS, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF SECTIONS 1346 AND 1491 OF TITLE 28, UNITED STATES CODE, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES COURT OF CLAIMS.