B-172440, JUN 2, 1971

B-172440: Jun 2, 1971

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WHILE CLAIM IS BASED ON VIEW THAT THE OFFERED POSITION WAS NOT OF THE SAME SENIORITY. TERWILLIGER: THIS IS IN REGARD TO YOUR LETTER OF MARCH 15. REQUESTING RECONSIDERATION OF YOUR CLAIM FOR SEVERANCE PAY WHICH WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE OF MARCH 5. THE FACTS AS RELATED IN THE DISALLOWANCE ARE AS FOLLOWS: "THE RECORD SHOWS THAT YOUR POSITION OF ELECTRICAL ENGINEER (UTILIZATION). WAS DECLARED SURPLUS TO THE NEEDS OF THE UTILITIES DIVISION. SINCE THERE WERE NO VACANCIES AT YOUR THEN CURRENT GRADE LEVEL IN YOUR ORGANIZATION TO WHICH YOU COULD BE REASSIGNED. YOU WERE NOTIFIED THAT YOU WERE BEING REASSIGNED TO THE POSITION OF ELECTRICAL ENGINEER (UTILIZATION). YOU WERE ADVISED THAT THE REASSIGNMENT WAS TO BE AT YOUR SAME GRADE.

B-172440, JUN 2, 1971

CIVILIAN EMPLOYEE - SEVERANCE PAY DECISION DENYING CLAIM BY FORMER AIR FORCE EMPLOYEE FOR SEVERANCE PAY. CIVIL SERVICE REGULATIONS DENY PAYMENT TO THOSE SUCH AS CLAIMANT WHO REFUSE AN OFFER OF ANOTHER POSITION OF LIKE TENURE AND PAY. WHILE CLAIM IS BASED ON VIEW THAT THE OFFERED POSITION WAS NOT OF THE SAME SENIORITY, "SENIORITY" AS USED IN CIVIL SERVICE REG. 550.701(B)(2) APPLIES ONLY TO POSTAL EMPLOYEES, IT DOES NOT GUARANTEE TO EMPLOYEES OF ALL AGENCIES RELOCATION IN A JOB OF EQUAL STATUS AS ALLEGED BY CLAIMANT.

TO MR. HERMAN G. TERWILLIGER:

THIS IS IN REGARD TO YOUR LETTER OF MARCH 15, 1971, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR SEVERANCE PAY WHICH WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE OF MARCH 5, 1971.

THE FACTS AS RELATED IN THE DISALLOWANCE ARE AS FOLLOWS:

"THE RECORD SHOWS THAT YOUR POSITION OF ELECTRICAL ENGINEER (UTILIZATION), GS-850-12, STEP 6, WAS DECLARED SURPLUS TO THE NEEDS OF THE UTILITIES DIVISION, OPERATIONS AND MAINTENANCE DIRECTORATE OF THE DEPUTY CHIEF OF STAFF, CIVIL ENGINEERING (MGEMU) ON OCTOBER 29, 1969. SINCE THERE WERE NO VACANCIES AT YOUR THEN CURRENT GRADE LEVEL IN YOUR ORGANIZATION TO WHICH YOU COULD BE REASSIGNED, YOU WERE NOTIFIED THAT YOU WERE BEING REASSIGNED TO THE POSITION OF ELECTRICAL ENGINEER (UTILIZATION), GS-850-12, STEP 6, IN THE ENGINEERING AND CONSTRUCTION BRANCH OF THE CIVIL ENGINEERING DIVISION, 2750TH AB WG, EWEE, BOTH POSITIONS BEING LOCATED AT WRIGHT-PATTERSON AFB. YOU WERE ADVISED THAT THE REASSIGNMENT WAS TO BE AT YOUR SAME GRADE, SALARY AND WITHIN YOUR SAME COMPETITIVE LEVEL. YOU CONTEND THAT YOUR REASSIGNMENT WAS NOT TO AN EQUIVALENT POSITION OF LIKE SENIORITY AND YOU DID NOT ACCEPT THE REASSIGNED POSITION. EFFECTIVE JUNE 5, 1970, YOU WERE REMOVED FROM YOUR POSITION WITH THE AIR FORCE FOR FAILURE TO ACCEPT THE REASSIGNMENT."

THE DISALLOWANCE WAS PREDICATED ON THE FACT THAT YOU WERE OFFERED A POSITION OF LIKE SENIORITY, TENURE AND PAY WITHIN THE MEANING OF APPLICABLE REGULATIONS AND THAT YOUR FAILURE TO ACCEPT THE OFFERED POSITION PRECLUDED THE ALLOWANCE OF SEVERANCE PAY.

YOU NOW STATE THAT YOUR ORIGINAL POSITION WAS ABOLISHED BECAUSE OF DISPLEASURE CAUSED BY YOUR ATTEMPTS TO REDUCE RECKLESS EXPENDITURES OF GOVERNMENT FUNDS. IN THIS CONNECTION YOU CITE YOUR EFFORTS TO CANCEL THE REPLACEMENT OF AN ELECTRIC DISTRIBUTION SYSTEM AT ROBINS AIR FORCE BASE AS WELL AS OTHER OF YOUR RECOMMENDATIONS WHICH YOU STATE WERE IGNORED. ADDITION YOU REASSERT YOUR CONTENTION THAT THE POSITION WHICH YOU WERE OFFERED WAS NOT OF LIKE SENIORITY, TENURE AND PAY TO YOUR FORMER POSITION.

WE FIND NOTHING IN THE RECORD BEFORE US TO SUPPORT YOUR ALLEGATION THAT THE ELIMINATION OF YOUR PARTICULAR POSITION WAS IMPROPERLY MOTIVATED BY CONSIDERATIONS ARISING OUT OF DISSATISFACTION WITH YOUR ATTEMPTS TO REDUCE GOVERNMENT SPENDING. HOWEVER, IT APPEARS THAT YOUR CLAIM OF ENTITLEMENT TO SEVERANCE PAY IS PRIMARILY BASED ON THE ASSERTION THAT THE REASSIGNMENT WHICH YOU WERE OFFERED AND WHICH YOU REFUSED TO ACCEPT WAS NOT ONE OF LIKE SENIORITY, TENURE AND PAY. SECTION 550.701(B)(2) OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PUBLISHED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS DENIES ENTITLEMENT TO SEVERANCE PAY UNDER THE FOLLOWING CIRCUMSTANCES:

"(2) THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, IS OFFERED AND DECLINES TO ACCEPT AN EQUIVALENT POSITION IN HIS AGENCY IN THE SAME COMMUTING AREA, INCLUDING AN AGENCY TO WHICH THE EMPLOYEE WITH HIS FUNCTION IS TRANSFERRED IN A TRANSFER OF FUNCTIONS BETWEEN AGENCIES. FOR PURPOSES OF THIS SUBPARAGRAPH, AN EQUIVALENT POSITION IS ONE OF LIKE SENIORITY, TENURE, AND PAY OTHER THAN A RETAINED RATE."

BASED ON A COMPARISON OF THE TWO JOB DESCRIPTIONS, YOU ARGUE THAT THE POSITION OFFERED WAS NOT EQUIVALENT TO THE BROAD SCOPE OF THE ELECTRIC ENGINEER (GENERAL) POSITION WHICH YOU HAD INITIALLY ACCEPTED. IN THIS REGARD YOU STATED IN YOUR LETTER OF APRIL 22, 1970, ADVISING THAT YOU WOULD NOT ACCEPT THE REASSIGNMENT:

"I CANNOT ACCEPT THE REASSIGNMENT YOU HAVE PROPOSED. THE EWEE POSITION REQUIRES LESS THAN HALF MY EXPERIENCE LEVEL AND THE PROFESSIONAL CHALLENGE IS VERY LIMITED. THE EMPLOYMENT I INITIALLY ACCEPTED WITH THE AIR FORCE, AND HAVE CONTINUOUSLY HELD, IS AT THIS HEADQUARTERS WITH RESPONSIBILITY FOR ASSISTING MANY INSTALLATIONS WITH UNUSUAL DIFFICULTIES CONCERNING ELECTRIC SYSTEM MAINTENANCE OPERATION, EQUIPMENT REQUIREMENTS AND OTHER SIMILAR PROBLEMS. THE REASSIGNMENT THAT HAS BEEN PROPOSED IS NOT 'ONE OF LIKE SENIORITY ... '"

AS YOU WERE PREVIOUSLY ADVISED, THE WORD "SENIORITY" AS USED IN THE ABOVE REGULATION RELATES PRIMARILY TO THE POSTAL SERVICE IN WHICH A SYSTEM BASED ON SENIORITY HAS BEEN ADOPTED FOR ALLOCATING CERTAIN ROUTE ASSIGNMENTS. IT HAS NO TECHNICAL APPLICATION OTHERWISE TO EMPLOYMENT RIGHTS IN THE OTHER SERVICES. YOU ATTEMPT TO EQUATE "SENIORITY" TO "STATUS" AND ARGUE, IN EFFECT, THAT THE POSITION TO WHICH YOU WERE REASSIGNED WAS NOT OF EQUAL STATUS TO YOUR FORMER POSITION. THE REGULATION PRESCRIBES NO REQUIREMENT THAT THE OFFERED POSITION BE OF LIKE "STATUS." WE THEREFORE CANNOT CONCLUDE ON THE BASIS OF YOUR ARGUMENT THAT THE POSITION YOU WERE OFFERED IN THE SAME GRADE AND AT THE SAME SALARY RATE FAILED TO MEET THE REQUIREMENT OF THE ABOVE REGULATION. WE ARE ENCLOSING WITH THIS LETTER A COPY OF OUR DECISION B 163506, MARCH 8, 1968, IN WHICH WE REJECTED A SIMILAR ARGUMENT AND INDICATED THAT AN OFFER OF A CONTINUING JOB AT AN EQUIVALENT OR HIGHER RATE OF PAY WITH NO CHANGE IN TENURE GROUP SATISFIED THE REQUIREMENTS AS TO AN EQUIVALENT POSITION.

YOU WERE ADVISED BY OUR SETTLEMENT CERTIFICATE THAT THE TERM "TENURE" AS USED IN THE ABOVE REGULATION RELATED TO THE EXPECTATION OF PERMANENCE OF THE EMPLOYMENT ON THE PART OF THE EMPLOYEE AND THAT THE POSITION WHICH YOU WERE OFFERED WAS OF LIKE TENURE WITH YOUR FORMER POSITION. YOU NOW SUGGEST THAT THE OFFERED POSITION WAS OF DOUBTFUL PERMANENCE IN THAT THE EMPLOYEE WHICH YOU WERE TO REPLACE WAS "ON LOAN" TO ANOTHER ASSIGNMENT. THE FACT THAT THE FORMER OCCUPANT OF YOUR POSITION MAY HAVE BEEN ON TEMPORARY DUTY ASSIGNMENT ELSEWHERE DOES NOT MAKE HIS POSITION ANY THE LESS PERMANENT OR SUGGEST THAT IT WAS SURPLUSAGE. WE CANNOT FIND ON THE BASIS OF THIS FACT THAT THE POSITION WHICH YOU WERE OFFERED WAS OF UNLIKE TENURE WITH YOUR FORMER POSITION.

FOR THE ABOVE REASONS, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.