B-182513, DEC 4, 1974

B-182513: Dec 4, 1974

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EMPLOYEE IS NOT ENTITLED TO SEVERANCE PAY EVEN THOUGH SEPARATION RESULTS FOR REDUCTION IN FORCE WHEN EMPLOYEE DECLINES OFFER OF EQUIVALENT POSITION IN SAME COMMUTING AREA SINCE APPLICABLE REGULATION EXCEPTS SUCH EMPLOYEES FROM COVERAGE OF SEVERANCE PAY BENEFITS. IN SUCH CASES EQUIVALENT OFFER UNDER THE REGULATIONS MAY CONSIST OF POSITION IN LOWER GRADE PROVIDED SALARY RATE IS THE SAME OR HIGHER THAN CURRENT POSITION AND AGENCY DETERMINATION OF WHAT IS THE SAME COMMUTING AREA IS CONSISTENT WITH APPLICABLE CIVIL SERVICE GUIDELINES. JUNE FAY HARMON - SEVERANCE PAY - EQUIVALENT POSITION: THIS ACTION IS A RECONSIDERATION OF THE CLAIM OF MRS. THE CLAIM WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION FOR THE REASONS SET FORTH IN ITS SETTLEMENT CERTIFICATE OF JULY 23.

B-182513, DEC 4, 1974

EMPLOYEE IS NOT ENTITLED TO SEVERANCE PAY EVEN THOUGH SEPARATION RESULTS FOR REDUCTION IN FORCE WHEN EMPLOYEE DECLINES OFFER OF EQUIVALENT POSITION IN SAME COMMUTING AREA SINCE APPLICABLE REGULATION EXCEPTS SUCH EMPLOYEES FROM COVERAGE OF SEVERANCE PAY BENEFITS. IN SUCH CASES EQUIVALENT OFFER UNDER THE REGULATIONS MAY CONSIST OF POSITION IN LOWER GRADE PROVIDED SALARY RATE IS THE SAME OR HIGHER THAN CURRENT POSITION AND AGENCY DETERMINATION OF WHAT IS THE SAME COMMUTING AREA IS CONSISTENT WITH APPLICABLE CIVIL SERVICE GUIDELINES.

JUNE FAY HARMON - SEVERANCE PAY - EQUIVALENT POSITION:

THIS ACTION IS A RECONSIDERATION OF THE CLAIM OF MRS. JUNE FAY HARMON FOR SEVERANCE PAY INCIDENT TO SEPARATION FROM A POSITION WITH THE SELECTIVE SERVICE SYSTEM AND AND CONSTITUTES A RESPONSE TO HER LETTER OF SEPTEMBER 9, 1974, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES ON THE SUBJECT MATTER. THE CLAIM WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION FOR THE REASONS SET FORTH IN ITS SETTLEMENT CERTIFICATE OF JULY 23, 1974.

SINCE THE FACTS ARE STATED IN DETAIL IN THE DISALLOWANCE, THEY ARE REPEATED HERE ONLY TO THE EXTENT NECESSARY FOR REVIEW. MRS. HARMON OCCUPIED A POSITION AT BURLINGTON, NEW JERSEY, IN GS-7, STEP 6, AT $11,629 PER ANNUM. PURSUANT TO A REDUCTION IN FORCE SHE WAS OFFERED ON MAY 1, 1974, A POSITION IN CAMDEN, NEW JERSEY, IN GRADE GS-6, STEP 10, AT $11,668 PER ANNUM. SHE WAS SEPARATED BECAUSE SHE DECLINED AN EQUIVALENT POSITION IN THE SAME COMMUTING AREA. MRS. HARMON WAS DENIED SEVERANCE PAY BY THE AGENCY ON THE BASIS OF THE APPLICABLE CIVIL SERVICE REGULATION - 5 CFR 550.701(B)(2) - WHICH PROVIDES THAT AN EMPLOYEE WHO DECLINES AN OFFER OF AN "EQUIVALENT POSITION" IN HIS AGENCY IN THE "SAME COMMUTING AREA" IS NOT ENTITLED TO SEVERANCE PAY. MRS. HARMON CLAIMS THE POSITION OFFERED HER WAS NOT AN "EQUIVALENT POSITION" NOR WAS IT LOCATED IN THE SAME COMMUTING AREA.

REGULATION 550.701(B)(2) PERTAINING TO SEVERANCE PAY READS AS FOLLOWS:

"(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 A POSITION OF LIKE SENIORITY, TENURE, AND PAY OTHER THAN A RETAINED RATE."

THE APPLICABLE GUIDELINES ISSUED BY THE CIVIL SERVICE COMMISSION, FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S7-3(C)(I), READS AS FOLLOWS:

"(C) APPLYING THE COVERAGE REQUIREMENTS.

"(I) AS AN EXAMPLE OF THE APPLICATION OF SECTION 550.701(B)(2) ABOVE, 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 ABOVE REGULATIONS AND GUIDELINES, THE POSITION OFFERED CONSTITUTED AN OFFER OF AN EQUIVALENT POSITION. WITH RESPECT TO WHAT CONSTITUTES A COMMUTING AREA, AS POINTED OUT IN THE DISALLOWANCE, THE CIVIL SERVICE COMMISSION IN ITS FEDERAL PERSONNEL MANUAL AT SECTION 4 4, SUBCHAPTER 4, CHAPTER 351, STATES:

"4-4. LOCAL COMMUTING AREA

"A LOCAL COMMUTING AREA IS A GEOGRAPHIC AREA THAT USUALLY CONSTITUTES ONE AREA FOR EMPLOYMENT. IT INCLUDES A POPULATION CENTER (OR TWO OR MORE NEIGHBORING ONES) AND THE SURROUNDING LOCALITIES IN WHICH PEOPLE LIVE AND REASONABLY CAN BE EXPECTED TO TRAVEL BACK AND FORTH DAILY FROM HOME TO WORK IN THEIR USUAL EMPLOYMENT. THERE IS NO RULE ARBITRARILY AND UNIVERSALLY APPLIED TO THE MAXIMUM LIMIT OF THE COMMUTING AREA. ONE PERSON'S WEILLINGNESS TO TRAVEL 75 MILES TWICE A DAY DOES NOT EXPAND A COMMUTING AREA; ANOTHER'S REFUSAL TO TRAVEL 25 DOES NOT SHRINK IT. THE EXTENT OF A COMMUTING AREA ORDINARILY IS DETERMINED BY COMMON PRACTICE OR BY WHAT REASONABLY CAN BE EXPECTED ON THE BASIS OF THE AVAILABILITY AND COST OF PUBLIC TRANSPORTATION OR THE CONVENIENCE AND ADEQUACY OF HIGHWAYS, AND THE TRAVEL TIME REQUIRED TO GO TO AND FROM WORK."

THE AGENCY DETERMINED THAT CAMDEN AND BURLINGTON WERE IN THE SAME COMMUTING AREA SINCE THE DISTANCE OF 18 MILES BETWEEN THE TWO WAS SERVICED BY ADEQUATE PUBLIC TRANSPORTATION AND RESIDENTS OF EACH CITY COMMUTED DAILY TO THE OTHER BETWEEN HOME AND PLACE OF USUAL EMPLOYMENT. REACHING ITS DETERMINATION, THE AGENCY CONSIDERED THE VIEWS OF MRS. HARMON AS TO THE ADEQUACY OF THE PUBLIC TRANSPORTATION. THE AGENCY DETERMINATION OF COMMUTING AREA APPEARS TO BE WITHIN THE DEFINITION QUOTED ABOVE.

SINCE ON REVIEW OF RECORD SHOWS THAT UNDER THE REGULATIONS MRS. HARMON DECLINED THE OFFER OF AN EQUIVALENT POSITION IN THE SAME COMMUTING AREA, WE CAN ONLY SUSTAIN THE DISALLOWANCE OF HER CLAIM FOR SEVERANCE PAY.