B-170392, AUG. 5, 1970

B-170392: Aug 5, 1970

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FAILURE TO FULFILL SERVICE AGREEMENT NO OBJECTION WILL BE MADE TO WAIVER OF RECOVERY OF RELOCATION EXPENSES IN CASE OF EMPLOYEE WHO RESIGNED FOR REASONS OF PREGNANCY BEFORE COMPLETION OF ONE YEAR OF SERVICE AFTER TRANSFER TO NEW STATION IF DEPARTMENT DETERMINES THAT SEPARATION WAS FOR REASONS BEYOND EMPLOYEE'S CONTROL AND ACCEPTABLE TO THE AGENCY. FARRALL: THIS WILL REFER TO YOUR LETTER OF JULY 16. 541.11 SHE WAS REIMBURSED FOR RELOCATION EXPENSES INCIDENT TO HER TRANSFER FROM CASPER. TERRY WAS MARRIED SUBSEQUENT TO HER TRANSFER AND ON APRIL 27. TERRY WAS TO BE CARRIED ON ANNUAL AND SICK LEAVE THROUGH 5 HOURS ON JULY 15. THE QUESTION TO BE DETERMINED IS WHETHER. SUCH A REFUND MUST BE MADE UNLESS IT IS DETERMINED THAT THE REASON FOR THE SEPARATION IS BEYOND THE CONTROL OF THE EMPLOYEE AND ACCEPTABLE TO THE AGENCY CONCERNED.

B-170392, AUG. 5, 1970

TRANSFERRED EMPLOYEE -- RELOCATION EXPENSE RECOVERY -- FAILURE TO FULFILL SERVICE AGREEMENT NO OBJECTION WILL BE MADE TO WAIVER OF RECOVERY OF RELOCATION EXPENSES IN CASE OF EMPLOYEE WHO RESIGNED FOR REASONS OF PREGNANCY BEFORE COMPLETION OF ONE YEAR OF SERVICE AFTER TRANSFER TO NEW STATION IF DEPARTMENT DETERMINES THAT SEPARATION WAS FOR REASONS BEYOND EMPLOYEE'S CONTROL AND ACCEPTABLE TO THE AGENCY.

TO MR. HAROLD J. FARRALL:

THIS WILL REFER TO YOUR LETTER OF JULY 16, 1970, REFERENCE 7-360, REQUESTING A DECISION AS TO WHETHER MRS. M. CLYDETTE TERRY MUST REFUND THE SUM OF $1,541.11 SHE WAS REIMBURSED FOR RELOCATION EXPENSES INCIDENT TO HER TRANSFER FROM CASPER, WYOMING, TO SALIDA, COLORADO, EFFECTIVE DECEMBER 28, 1969.

YOUR LETTER STATES THAT MRS. TERRY WAS MARRIED SUBSEQUENT TO HER TRANSFER AND ON APRIL 27, 1970, SHE SUBMITTED A RESIGNATION EFFECTIVE JUNE 27, 1970, FOR THE REASON THAT "MY DOCTOR ADVISES THAT I SHOULD STOP WORKING AT THIS TIME BECAUSE OF MY PREGNANCY." THE RESIGNATION FORM SHOWS THAT MRS. TERRY WAS TO BE CARRIED ON ANNUAL AND SICK LEAVE THROUGH 5 HOURS ON JULY 15, 1970.

THE QUESTION TO BE DETERMINED IS WHETHER, AS A RESULT OF HER SEPARATION, MRS. TERRY MUST BE HELD LIABLE UNDER THE 12-MONTH SERVICE AGREEMENT SHE SIGNED FOR REFUND OF RELOCATION EXPENSES PAID BY THE GOVERNMENT. UNDER THE APPLICABLE LAW, SUBSECTION 5724(I) OF TITLE 5 OF THE U.S.C. AND REGULATION, SUBSECTION 1.3C(1) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 AS REVISED JUNE 26, 1969, SUCH A REFUND MUST BE MADE UNLESS IT IS DETERMINED THAT THE REASON FOR THE SEPARATION IS BEYOND THE CONTROL OF THE EMPLOYEE AND ACCEPTABLE TO THE AGENCY CONCERNED.

THE CIRCUMSTANCES OF MRS. TERRY'S SEPARATION ARE SUCH THAT, IN LIEU OF RESIGNATION, CONSIDERATION MIGHT WELL HAVE BEEN GIVEN TO PLACING HER ON MATERNITY LEAVE THUS PERMITTING HER AN OPPORTUNITY TO REMAIN ON THE ROLLS OF THE AGENCY FOR THE PERIOD OF TIME NECESSARY TO MEET THE TERMS OF THE SERVICE AGREEMENT (CF. B-158739, DATED MAY 11, 1966, COPY ENCLOSED). YOUR LETTER STATES THAT SUCH LEAVE IS "NORMALLY AVAILABLE" TO EMPLOYEES. HOWEVER, YOUR LETTER FURTHER STATES THAT "MRS. TERRY WAS NOT OFFERED MATERNITY LEAVE BECAUSE IT WAS KNOWN THAT SHE DID NOT INTEND TO RETURN TO WORK IN SALIDA." IT IS ALSO STATED IN YOUR LETTER AND THE ENCLOSED LETTER OF THE ACTING PROJECT MANAGER THAT MRS. TERRY'S HUSBAND MAINTAINED A RESIDENCE AT CASPER, WYOMING, AT ALL TIMES FOLLOWING THEIR MARRIAGE AND IT IS NOTED THAT THE RESIGNATION FORM SHOWS A FORWARDING ADDRESS AT CASPER, WYOMING. HOWEVER, THAT FORM DOES NOT INDICATE THAT AN EXIT INTERVIEW WAS HELD WITH THE EMPLOYEE AND NOTHING IN THE FILE INDICATES THE BASIS FOR THE STATEMENT THAT IT WAS KNOWN MRS. TERRY WOULD NOT RETURN TO WORK AT SALIDA OTHER THAN THE FACTS RELATED ABOVE. IT IS POSSIBLE THAT MRS. TERRY MIGHT, IF GIVEN A CHOICE, HAVE ELECTED TO BE PLACED ON MATERNITY LEAVE, AND RETURNED AFTER SUCH LEAVE FOR SUCH TIME AS NECESSARY TO FULFILL HER SERVICE AGREEMENT. THUS, IN EFFECT, IT MAY HAVE BEEN AN ADMINISTRATIVE DECISION NOT TO GRANT MATERNITY LEAVE OVER WHICH THE EMPLOYEE HAD NO CONTROL, WHICH REQUIRED HER TO RESIGN. ON THE OTHER HAND, IF SHE HAD A FREE CHOICE BETWEEN RESIGNATION AND MATERNITY LEAVE AND DECIDED TO RESIGN A FINDING COULD CERTAINLY BE MADE THAT THE RESIGNATION WAS NOT BEYOND HER CONTROL.

IT IS NOTED THAT THE RECOMMENDATION OF THE PROJECT MANAGER IS THAT THE RESIGNATION BE ACCEPTED AS BEING FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE AND THAT THE RELOCATION EXPENSES NOT BE RECOVERED. THIS SUGGESTS THAT MRS. TERRY'S PHYSICAL CONDITION OR DOMESTIC ARRANGEMENTS WERE SUCH THAT IT WAS, IN FACT, IMPOSSIBLE FOR HER TO CONTINUE WORKING AT SALIDA UNDER ANY CIRCUMSTANCES. THUS, MATERNITY LEAVE, COMTEMPLATING A RETURN TO HER POSITION AFTER A PERIOD OF INCAPACITY MAY NOT HAVE BEEN A REALISTIC ALTERNATIVE TO RESIGNATION AND, THEREFORE, NOT A CHOICE WITHIN THE CONTROL OF THE EMPLOYEE.

UNDER THE CONTROLLING LAW AND REGULATION THE DETERMINATION AS TO WHETHER AN EMPLOYEE'S SEPARATION FROM THE SERVICE IS FOR A REASON BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY CONCERNED MUST BE MADE BY THE EMPLOYING AGENCY. IN THE ABSENCE OF EVIDENCE THAT SUCH A DETERMINATION IS ARBITRARY OR CAPRICIOUS THIS OFFICE WILL BE GOVERNED BY THE DECISION OF THE AGENCY. B-169880, DATED JULY 6, 1970, COPY ENCLOSED. IN VIEW OF THE RECOMMENDATIONS OF THE ACTING PROJECT MANAGER AND THE DOUBT WHICH EXISTS CONCERNING THE EXTENT TO WHICH MRS. TERRY WAS IN A POSITION TO CONTROL THE CIRCUMSTANCES OF HER RESIGNATION THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT IN THE EVENT YOUR DEPARTMENT SHOULD NOW DETERMINE THAT SHE WAS SEPARATED FOR REASONS BEYOND HER CONTROL WHICH ARE ACCEPTABLE TO YOUR AGENCY. B-103172, DATED MAY 18, 1967; B-161058, DATED MARCH 29, 1967, AND B-165910, DATED FEBRUARY 10, 1969, COPIES ENCLOSED.