B-183157, APR 1, 1975

B-183157: Apr 1, 1975

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THE DISALLOWANCE IS SUSTAINED SINCE IT IS WITHIN AGENCY'S DISCRETION AS TO WHAT CONSTITUTES INEFFICIENCY IN DECIDING ELIGIBILITY FOR SEVERANCE PAY AND SEPARATION FOR INEFFICIENCY PRECLUDES SEVERANCE PAY UNDER 5 U.S.C. 5595(B)(2) (1970). PRICE WAS REMOVED FROM HIS AIR TRAFFIC CONTROL SPECIALIST (ATCS) POSITION WITH THE FEDERAL AVIATION ADMINISTRATION (FAA) DUE TO HIS FAILURE TO MEET TRAINING REQUIREMENTS ASSOCIATED WITH HIS DEVELOPMENTAL POSITION. SEVERANCE PAY WAS DENIED ON THE BASIS THAT HIS REMOVAL WAS FOR "INEFFICIENCY" AND THEREFORE HE WAS NOT ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. 5595(B)(2) (1970). PRICE'S REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF HIS CLAIM FOR SEVERANCE PAY IS THAT THE FAILURE TO SUCCESSFULLY COMPLETE REQUIRED TRAINING SHOULD NOT BE INTERPRETED AS "INEFFICIENCY" WITHIN THE MEANING OF 5 U.S.C. 5595(B)(2) (1970).

B-183157, APR 1, 1975

FORMER AIR TRAFFIC CONTROL SPECIALIST EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATIVE REQUESTED REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION OF HIS CLAIM FOR SEVERANCE PAY BELIEVED DUE INCIDENT TO HIS REMOVAL FROM HIS POSITION FOR FAILURE TO COMPLETE REQUIRED TRAINING PROGRAM. THE DISALLOWANCE IS SUSTAINED SINCE IT IS WITHIN AGENCY'S DISCRETION AS TO WHAT CONSTITUTES INEFFICIENCY IN DECIDING ELIGIBILITY FOR SEVERANCE PAY AND SEPARATION FOR INEFFICIENCY PRECLUDES SEVERANCE PAY UNDER 5 U.S.C. 5595(B)(2) (1970).

HOWARD E. PRICE - SEVERANCE PAY:

THIS ACTION RESULTS FROM AN APPEAL FROM OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT DATED NOVEMBER 18, 1974, WHICH DISALLOWED THE CLAIM OF MR. HOWARD E. PRICE FOR SEVERANCE PAY. MR. PRICE WAS REMOVED FROM HIS AIR TRAFFIC CONTROL SPECIALIST (ATCS) POSITION WITH THE FEDERAL AVIATION ADMINISTRATION (FAA) DUE TO HIS FAILURE TO MEET TRAINING REQUIREMENTS ASSOCIATED WITH HIS DEVELOPMENTAL POSITION. SEVERANCE PAY WAS DENIED ON THE BASIS THAT HIS REMOVAL WAS FOR "INEFFICIENCY" AND THEREFORE HE WAS NOT ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. 5595(B)(2) (1970).

THE GRAVAMEN OF MR. PRICE'S REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF HIS CLAIM FOR SEVERANCE PAY IS THAT THE FAILURE TO SUCCESSFULLY COMPLETE REQUIRED TRAINING SHOULD NOT BE INTERPRETED AS "INEFFICIENCY" WITHIN THE MEANING OF 5 U.S.C. 5595(B)(2) (1970). EVEN THOUGH A NEW NATURE OF ACTION CODE IN ATCS TRAINING FAILURE SITUATIONS (333 SEPARATION-FAILURE TO COMPLETE TRAINING INSTEAD OF 345 SEPARATION INEFFICIENCY) HAS BEEN ASSIGNED TO THIS TYPE OF PERSONNEL ACTION, THE FAA AND THE CIVIL SERVICE COMMISSION (CSC) AGREE THAT THIS CHANGE OF TERMINOLOGY DOES NOT ALTER THE POSITION OF THE FAA THAT SEPARATION UNDER SUCH FAILURE IS A SEPARATION FOR INEFFICIENCY, THEREBY PRECLUDING SEVERANCE PAY.

THE AGENCY CONCERNED AND THE CSC HAVE PRIMARY JURISDICTION IN DETERMINING WHAT CONSTITUTES INEFFICIENCY AND UNLESS THERE IS EVIDENCE NOT PRESENT IN THIS CASE - THAT THE FAA DETERMINATION, FURTHER SUPPORTED BY THE CSC, WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT SUBSTITUTE OUR OWN JUDGMENT ON THIS QUESTION. THEREFORE, WE FIND NO LEGAL BASIS TO SUSTAIN MR. PRICE'S CLAIM.

ACCORDINGLY, THE DISALLOWANCE OF SEVERANCE PAY IS AFFIRMED.