B-181583, DEC 23, 1974

B-181583: Dec 23, 1974

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WHERE A GOVERNMENT EMPLOYEE IS ALLEGEDLY FORCED TO RESIGN FROM FEDERAL SERVICE. THAT THE RESIGNATION WAS INVOLUNTARY. SR. - COMPENSATION ADJUSTMENT: THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE Z-2514355. FOR AN AMOUNT EQUIVALENT TO THE SALARY HE WOULD HAVE EARNED FROM THE EFFECTIVE DATE OF HIS RESIGNATION ON OCTOBER 27. HE CLAIMS THAT HE WAS COERCED INTO RESIGNING INVOLUNTARILY BECAUSE HE WAS IN DEBT. FURTHER CLAIMS THAT HE WAS NOT ACCORDED FAIR TREATMENT SINCE OTHERS IN THE GOVERNMENT WERE IN DEBT. WERE NOT FORCED TO RESIGN. HE POINTS TO THE EXAMPLE OF A POSTAL CLERK WHO WAS FIRED BECAUSE OF A DEBT PROBLEM. WAS REINSTATED WITH BACK PAY BY AN UNDERSTANDING JUDGE. PAYNE'S RESIGNATION SHOWS THAT HE RESIGNED BECAUSE: "I FEEL THAT I HAVE REACHED MY PEAK IN THE MAP SERVICE AND I WOULD LIKE TO TAKE THIS OPPORTUNITY TO BETTER MY POSITION IN LIFE.".

B-181583, DEC 23, 1974

WHERE A GOVERNMENT EMPLOYEE IS ALLEGEDLY FORCED TO RESIGN FROM FEDERAL SERVICE, THIS OFFICE CANNOT PROPERLY ALLOW A CLAIM FOR BACK PAY UNTIL THE APPROPRIATE AUTHORITY, THE CIVIL SERVICE COMMISSION, ORDERS REINSTATEMENT ON THE BASIS THAT THE EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, I.E. THAT THE RESIGNATION WAS INVOLUNTARY.

WARREN J. PAYNE, SR. - COMPENSATION ADJUSTMENT:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE Z-2514355, APRIL 25, 1974, BY THE TRANSPORTATION AND CLAIMS DIVISION OF THE UNITED STATES GENERAL ACCOUNTING OFFICE DISALLOWING THE CLAIM OF MR. WARREN J. PAYNE, SR., FOR AN AMOUNT EQUIVALENT TO THE SALARY HE WOULD HAVE EARNED FROM THE EFFECTIVE DATE OF HIS RESIGNATION ON OCTOBER 27, 1967, TO THE PRESENT AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

EFFECTIVE OCTOBER 27, 1967, WARREN J. PAYNE, SR., OFFSET PHOTOGRAPHER, RESIGNED FROM HIS POSITION WITH THE ARMY MAP SERVICE. HE CLAIMS THAT HE WAS COERCED INTO RESIGNING INVOLUNTARILY BECAUSE HE WAS IN DEBT. FURTHER CLAIMS THAT HE WAS NOT ACCORDED FAIR TREATMENT SINCE OTHERS IN THE GOVERNMENT WERE IN DEBT, BUT WERE NOT FORCED TO RESIGN. HE POINTS TO THE EXAMPLE OF A POSTAL CLERK WHO WAS FIRED BECAUSE OF A DEBT PROBLEM, BUT WAS REINSTATED WITH BACK PAY BY AN UNDERSTANDING JUDGE. THEREFORE, HE CLAIMS, HE SHOULD BE COMPENSATED FOR BACK PAY LOST SINCE THE DATE HE RESIGNED.

MR. PAYNE'S RESIGNATION SHOWS THAT HE RESIGNED BECAUSE: "I FEEL THAT I HAVE REACHED MY PEAK IN THE MAP SERVICE AND I WOULD LIKE TO TAKE THIS OPPORTUNITY TO BETTER MY POSITION IN LIFE." ALTHOUGH THERE IS EVIDENCE IN THE RECORD THAT A LETTER OF REPRIMAND WAS PRESENTED TO HIM ON JULY 20, 1966, WARNING THAT FUTURE RECEIPT OF DEBT COMPLAINTS OF AN AGGRAVATED NATURE WOULD RESULT IN A PROPOSAL THAT HE BE REMOVED FROM FEDERAL SERVICE, THERE IS NO INDICATION OF A CONNECTION BETWEEN THIS LETTER AND MR. PAYNE'S RESIGNATION OF OCTOBER 27, 1967, NOR IS THERE ANY OTHER INDICATION IN THE RECORD THAT HE WAS COMPELLED TO RESIGN INVOLUNTARILY.

SECTION 5596(B) OF TITLE 5 OF THE U.S.C. PROVIDES THAT IN ORDER TO RECOVER BACK PAY, AN EMPLOYEE MUST HAVE BEEN FOUND BY APPROPRIATE AUTHORITY TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. B-173433, JULY 19, 1971. THE APPROPRIATE AUTHORITY TO MAKE SUCH A FINDING INITIALLY IS THE EMPLOYEE'S OWN AGENCY, WITH THE RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION. SEE DABNEY V. FREEMAN, 358 F.2D 533 (D.C. CIR 1965) AND GOODMAN V. UNITED STATES, 358 F.2D 532 (D.C. CIR. 1966).

IN GOVERNMENT EMPLOYEE SEPARATION CASES WHERE THE ISSUE OF VOLUNTARINESS WITH RESPECT TO A RESIGNATION IS RAISED, THERE SHOULD BE A HEARING BEFORE THE CIVIL SERVICE COMMISSION TO DETERMINE THE FACTS. GOODMAN V. UNITED STATES, SUPRA. THE CIVIL SERVICE COMMISSION HAS THE FUNCTION OF HEARING AHD DECIDING APPEALS WHICH ASSERT WRONGFUL SEPARATION FROM FEDERAL SERVICE. A SEPARATION BY REASON OF A COERCED RESIGNATION IS, IN SUBSTANCE, A DISCHARGE EFFECTED BY ADVERSE ACTION OF THE EMPLOYING AGENCY. DABNEY V. FREEMAN, SUPRA. IF THE COMMISSION FINDS THAT THE RESIGNATION IN THE PRESENT CASE WAS INVOLUNTARY, THEN THE SEPARATION FROM GOVERNMENT EMPLOYMENT CONSTITUTED A DISCHARGE, AND MR. PAYNE WOULD BE ENTITLED TO REINSTATEMENT, SUBJECT TO THE EMPLOYER'S CONTINUING DISCRETION TO INITIATE DISCHARGE PROCEEDINGS IN THE PRESCRIBED MANNER. SEE PAROCZAY V. HODGES, 219 F.SUPP. 89 (D.D.C. 1963) AND DABNEY V. FREEMAN, SUPRA.

EMPLOYEES WHO ARE REINSTATED BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW PROPER PROCEDURES UNDER 5 U.S.C. 7501 FOR EMPLOYEES IN THE COMPETITIVE SERVICE ARE ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596 FOR THE PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL. 34 COMP. GEN. 568 (1955).

HOWEVER, UNTIL THE APPROPRIATE AUTHORITY, I.E., CIVIL SERVICE COMMISSION, FINDS THAT MR. PAYNE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, I.E., THAT HIS RESIGNATION WAS INVOLUNTARY, WE MUST SUSTAIN THE ACTION OF TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING HIS CLAIM FOR BACK PAY.