B-168602, FEB. 12, 1970

B-168602: Feb 12, 1970

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CIVIL SERVICE COMMISSION'S DETERMINATION THAT EMPLOYEE'S SEPARATION WAS NOT DUE TO TRANSFER OF FUNCTION WAS PROPER AND. SEVERANCE PAY IS NOT PAYABLE. THE POINTS THAT YOU PRESENT ARE SUBSTANTIALLY THE SAME AS THOSE CONSIDERED IN OUR CLAIMS DIVISION'S SETTLEMENT OF FEBRUARY 3. SEE NO NEED HERE TO REFER TO ALL OF SUCH POINTS PARTICULARLY SINCE THE RECORD SHOWS THAT SIMILAR POINTS ALSO WERE CONSIDERED BY THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW ON NOVEMBER 7. THAT YOUR SEPARATION WAS PROPER. IN YOUR CASE THE CIVIL SERVICE COMMISSION HELD THAT NO TRANSFER OF FUNCTION WAS INVOLVED WITHIN THE MEANING OF THE APPLICABLE REGULATIONS. AS FOLLOWS: "A CIVILIAN EMPLOYEE AFFECTED BY AN ORGANIZATIONAL CHANGE WHO DECLINES TO ACCEPT A TRANSFER TO A POSITION AT THE SAME GRADE AND PAY TO ANOTHER GEOGRAPHIC AREA TO WHICH THE FUNCTIONS HE HAD BEEN PERFORMING WERE NOT TRANSFERRED AND HE THEREFORE IS SEPARATED FROM THE SERVICE.

B-168602, FEB. 12, 1970

CIVIL PAY--SEVERANCE PAY DECISION SUSTAINING SETTLEMENT DISALLOWING CLAIM FOR SEVERANCE PAY BECAUSE OF EMPLOYEE'S FAILURE TO ACCEPT REASSIGNMENT TO SAN FRANCISCO. CIVIL SERVICE COMMISSION'S DETERMINATION THAT EMPLOYEE'S SEPARATION WAS NOT DUE TO TRANSFER OF FUNCTION WAS PROPER AND, THEREFORE, SEVERANCE PAY IS NOT PAYABLE.

TO MR. FRANK R. RANEY:

YOUR LETTER OF NOVEMBER 6, 1969, WITH ENCLOSURES, IN EFFECT REQUESTS A REVIEW OF OUR SETTLEMENT OF FEBRUARY 3, 1969, WHICH DISALLOWED YOUR CLAIM FOR SEVERANCE PAY UNDER SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, NOW CONTAINED IN 5 U.S.C. 5595. THE MATTER CONCERNS YOUR SEPARATION FROM THE SERVICE BECAUSE OF YOUR FAILURE TO ACCEPT REASSIGNMENT TO SAN FRANCISCO, CALIFORNIA, AS AN EMPLOYEE OF THE NATIONAL PARK SERVICE IN 1968.

THE POINTS THAT YOU PRESENT ARE SUBSTANTIALLY THE SAME AS THOSE CONSIDERED IN OUR CLAIMS DIVISION'S SETTLEMENT OF FEBRUARY 3, 1969. SEE NO NEED HERE TO REFER TO ALL OF SUCH POINTS PARTICULARLY SINCE THE RECORD SHOWS THAT SIMILAR POINTS ALSO WERE CONSIDERED BY THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW ON NOVEMBER 7, 1968, IN AFFIRMING THE SAN FRANCISCO REGIONAL OFFICE'S DECISION OF AUGUST 19, 1968, THAT YOUR SEPARATION WAS PROPER.

THE COMMISSION'S CHANGES OF THE SEVERANCE PAY REGULATIONS IN JANUARY AND JULY OF 1969, MENTIONED BY YOU, RELATE TO SITUATIONS OF TRANSFERS OF FUNCTIONS. IN YOUR CASE THE CIVIL SERVICE COMMISSION HELD THAT NO TRANSFER OF FUNCTION WAS INVOLVED WITHIN THE MEANING OF THE APPLICABLE REGULATIONS.

IN OUR DECISION DATED JUNE 16, 1966, B-159029 (45 COMP. GEN. 811) WE HELD, QUOTING THE SYLLABUS, AS FOLLOWS:

"A CIVILIAN EMPLOYEE AFFECTED BY AN ORGANIZATIONAL CHANGE WHO DECLINES TO ACCEPT A TRANSFER TO A POSITION AT THE SAME GRADE AND PAY TO ANOTHER GEOGRAPHIC AREA TO WHICH THE FUNCTIONS HE HAD BEEN PERFORMING WERE NOT TRANSFERRED AND HE THEREFORE IS SEPARATED FROM THE SERVICE, WITHOUT RESIGNATION, IS NOT ENTITLED TO THE SEVERANCE PAY PROVIDED BY SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, THE EMPLOYEE NOT HAVING BEEN SEPARATED FOR FAILURE TO ACCOMPANY HIS POSITION TO ANOTHER COMMUTING AREA IN A TRANSFER OF FUNCTION SO AS TO CONSTITUTE AN INVOLUNTARY SEPARATION WITHIN THE MEANING OF SECTION 550.705 OF THE CIVIL SERVICE REGULATIONS, BUT HAVING BEEN REMOVED FOR CAUSE BY REASON OF NOT REPORTING FOR DUTY UPON REASSIGNMENT TO A DIFFERENT POSITION AT ANOTHER LOCATION." ALSO SEE THE ENCLOSED COPIES OF OUR DECISIONS B-161083, DATED JULY 17, 1967 (47 COMP. GEN. 56) AND B-161400, DATED JULY 25, 1967.

WE SEE NO REASON TO DISAGREE WITH THE DETERMINATIONS OF YOUR AGENCY AND THE CIVIL SERVICE COMMISSION THAT YOUR SEPARATION DID NOT OCCUR BECAUSE OF A TRANSFER OF FUNCTION. THEREFORE, OUR SETTLEMENT OF FEBRUARY 3, 1969, CORRECTLY ADVISED YOU THAT YOU WERE NOT ENTITLED TO SEVERANCE PAY UNDER THE PROVISIONS OF 5 U.S.C. 5595.