B-205297.OM, MAR 22, 1982

B-205297.OM: Mar 22, 1982

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RIF WAS CANCELLED ON MAY 18. RESIGNATION WAS NOT INVOLUNTARY SEPARATION WHICH WOULD ENTITLE EMPLOYEE TO SEVERANCE PAY UNDER NOTICE OF RIF. EMPLOYEE COULD HAVE WITHDRAWN VOLUNTARY RESIGNATION AT ANY TIME PRIOR TO ITS EFFECTIVE DATE. NOW CLAIMS SEVERANCE PAY SINCE AT THE TIME SHE ACCEPTED OTHER EMPLOYMENT SHE WAS STILL COVERED UNDER THE PROPOSED RIF ACTION. SEC. 5595 AN EMPLOYEE WHO HAS BEEN CONTINUOUSLY EMPLOYED FOR AT LEAST 12 MONTHS IS ENTITLED TO SEVERANCE PAY IF INVOLUNTARILY SEPARATED FOR REASONS OTHER THAN FOR CAUSE ON CHARGES OF MISCONDUCT. A RESIGNATION IS DEEMED TO BE AN INVOLUNTARY SEPARATION WHEN IT IS INCIDENT TO RECEIVING (1) A SPECIFIC NOTICE OF INVOLUNTARY SEPARATION. FASO SUBMITTED HER WRITTEN RESIGNATION WHILE SHE WAS COVERED BY A SPECIFIC NOTICE OF REMOVAL INCIDENT TO A PROPOSED RIF.

B-205297.OM, MAR 22, 1982

SUBJECT: CLAIM FOR SEVERANCE PAY - B-205297-O.M. DIGEST: EMPLOYEE, WHO RECEIVED NOTICE OF REDUCTION IN FORCE (RIF), ACCEPTED PRIVATE EMPLOYMENT AND SUBMITTED WRITTEN RESIGNATION ON MAY 18, 1981, TO BE EFFECTIVE ON MAY 30, 1981. RIF WAS CANCELLED ON MAY 18. RESIGNATION WAS NOT INVOLUNTARY SEPARATION WHICH WOULD ENTITLE EMPLOYEE TO SEVERANCE PAY UNDER NOTICE OF RIF. EMPLOYEE COULD HAVE WITHDRAWN VOLUNTARY RESIGNATION AT ANY TIME PRIOR TO ITS EFFECTIVE DATE.

ASSOCIATE DIRECTOR, AFMD (CLAIMS GROUP):

THE RECORD INDICATES THAT ON APRIL 28, 1981, MS. CYNTHIA A. FASO RECEIVED NOTICE OF A REDUCTION IN FORCE (RIF) DATED APRIL 23, 1981, UNDER WHICH SHE WOULD BE SEPARATED EFFECTIVE MAY 30, 1981. MS. FASO SOUGHT OTHER EMPLOYMENT AND BY LETTER DATED MAY 13, 1981, SHE RECEIVED CONFIRMATION OF EMPLOYMENT IN PRIVATE INDUSTRY. SHE SUBMITTED HER WRITTEN RESIGNATION ON MAY 18, 1981, TO BE EFFECTIVE MAY 30, 1981, BUT LATER THAT DAY SHE RECEIVED NOTICE THAT THE PROPOSED RIF HAD BEEN CANCELLED. MS. FASO RESIGNED AS PLANNED ON MAY 30, 1981, AND NOW CLAIMS SEVERANCE PAY SINCE AT THE TIME SHE ACCEPTED OTHER EMPLOYMENT SHE WAS STILL COVERED UNDER THE PROPOSED RIF ACTION.

UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5595 AN EMPLOYEE WHO HAS BEEN CONTINUOUSLY EMPLOYED FOR AT LEAST 12 MONTHS IS ENTITLED TO SEVERANCE PAY IF INVOLUNTARILY SEPARATED FOR REASONS OTHER THAN FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. A RESIGNATION IS DEEMED TO BE AN INVOLUNTARY SEPARATION WHEN IT IS INCIDENT TO RECEIVING (1) A SPECIFIC NOTICE OF INVOLUNTARY SEPARATION, (2) A GENERAL NOTICE OF REDUCTION IN FORCE, OR (3) A NOTICE OF SEPARATION FOR DECLINING TO TRANSFER WITH THE ACTIVITY TO ANOTHER COMMUTING AREA. 5 C.F.R. SEC. 550.706(A) (1981). SEE ALSO LEO C. NICHOLS, B-193913, APRIL 6, 1979.

IN THE PRESENT CASE MS. FASO SUBMITTED HER WRITTEN RESIGNATION WHILE SHE WAS COVERED BY A SPECIFIC NOTICE OF REMOVAL INCIDENT TO A PROPOSED RIF. HOWEVER, AFTER SHE SUBMITTED HER RESIGNATION AND BEFORE IT WAS EFFECTIVE, THE PROPOSED RIF WAS CANCELLED. THEREFORE, MS. FASO'S RESIGNATION ON MAY 30, 1981, WAS NOT INCIDENT TO A RIF NOTICE, AND IT MUST BE CONSIDERED TO BE A VOLUNTARY SEPARATION. SEE 5 C.F.R. SEC. 550.706(B).

ALTHOUGH IT MIGHT BE ARGUED THAT THE SUBMISSION OF A WRITTEN RESIGNATION IS CONTROLLING, WE ARE NOT SO PERSUADED. UNDER THE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, CHAPTER 715, SUBCHAPTER 2, A RESIGNATION IS A VOLUNTARY ACTION BY AN EMPLOYEE, AND THE AGENCY MUST ALLOW THE EMPLOYEE TO WITHDRAW THE RESIGNATION AT ANY TIME BEFORE IT HAS BECOME EFFECTIVE, EXCEPT WHEN THE AGENCY HAS A VALID REASON TO DENY WITHDRAWAL. FPM CHAP. 715, S2-3. THUS, IN THE PRESENT CASE IT APPEARS THAT MS. FASO COULD HAVE WITHDRAWN HER RESIGNATION FOLLOWING CANCELLATION OF THE PROPOSED RIF ACTION. SHE CHOSE NOT TO DO SO FOR PERSONAL REASONS. THEREFORE, WE MUST CONCLUDE THAT MS. FASO'S RESIGNATION WAS A VOLUNTARY SEPARATION AND WAS UNRELATED TO A RIF ACTION. HER CLAIM FOR SEVERANCE PAY MUST BE DENIED.