B-182300, JAN 16, 1975

B-182300, JAN 16, 1975

1. FORMER EMPLOYEE OF U.S. GEOLOGICAL SURVEY, RESIDING IN POTOMAC, MARYLAND, WHO DECLINED TO ACCOMPANY HIS ACTIVITY WHEN AGENCY MOVED FROM WASHINGTON, D.C., TO RESTON, VIRGINIA, IS NOT ENTITLED TO SEVERANCE PAY SINCE QUESTION OF WHETHER SEPARATION IS VOLUNTARY OR INVOLUNTARY IS A JUDGMENTAL DETERMINATION, BASED ON THE FACTS IN EACH CASE, AND AGENCY HAS DETERMINED THAT THE SEPARATION OF THE EMPLOYEE WAS VOLUNTARY. 2. EVEN THOUGH NEW WORKSITE IN RESTON, VIRGINIA, IS IN A DIFFERENT COMMUTING AREA THAN OLD SITE IN WASHINGTON, D.C., IN VIEW OF RELATIVELY MODEST INCREASES IN DISTANCE, TIME, AND COST OF COMMUTING TO AND FROM CLAIMANT'S RESIDENCE IN POTOMAC, MARYLAND, TO RESTON, VIRGINIA, BY PRIVATE CONVEYANCE, IT CANNOT BE SAID THAT THE AGENCY'S DETERMINATION THAT THE EMPLOYEE WAS NOT COMPELLED TO MOVE HIS HOME IN ORDER TO TRAVEL TO WORK AND THAT THE SEPARATION OF THE EMPLOYEE WAS THEREFORE NOT INVOLUNTARY WAS ARBITRARY OR CAPRICIOUS.

MARSHALL S. HELLMANN - SEVERANCE PAY:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE OF SEPTEMBER 6, 1974, ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION WHICH DISALLOWED THE CLAIM FOR SEVERANCE PAY OF MR. MARSHALL S. HELLMANN, A FORMER EMPLOYEE OF THE UNITED STATES GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR. MR. HELLMANN'S CLAIM WAS DISALLOWED ON THE GROUND THAT, BASED ON THE PRESENT RECORD, IT COULD NOT BE CONCLUDED THAT HIS AGENCY'S DETERMINATION THAT HE WAS INVOLUNTARILY SEPARATED WAS ERRONEOUS, ARBITRARY, OR CAPRICIOUS.

THE RECORD DISCLOSES THAT THE CLAIMANT WAS EMPLOYED AS A MATHEMATICIAN, GS-13, WITH THE DEPARTMENT OF THE INTERIOR, 18TH AND C STREETS, NW., WASHINGTON, D.C. HIS RESIDENCE IS LOCATED AT 9800 RIVER ROAD, POTOMAC, MARYLAND. ON NOVEMBER 23, 1973, MR. HELLMANN WAS SEPARATED FROM THE GEOLOGICAL SURVEY FOR REFUSING TO ACCOMPANY HIS AGENCY TO THE NEW GEOGRAPHICAL LOCATION IN RESTON, VIRGINIA.

IN RESPONSE TO THE DETERMINATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SUSTAINING THE DISALLOWANCE OF HIS CLAIM FOR SEVERANCE PAY, IN A LETTER DATED SEPTEMBER 10, 1974, MR. HELLMANN SUBMITTED ADDITIONAL EVIDENCE SHOWING THAT HE WAS UNABLE TO ACCEPT AN ASSIGNMENT AT RESTON BECAUSE OF THE LACK OF PUBLIC TRANSPORTATION; THE MECHANICAL CONDITION OF HIS PRIVATELY OWNED AUTOMOBILE; THE PROXIMITY OF HIS WIFE'S WORK TO THEIR PRESENT RESIDENCE; SHORTAGE OF GASOLINE; SCHOOLING FOR HIS CHILDREN; COMMUNITY AND FAMILY TIES; AND THE COST OF OBTAINING COMPARABLE OR SUITABLE HOUSING IN THE RESTON AREA WOULD EXCEED HIS PRESENT COSTS.

IN A LETTER DATED AUGUST 27, 1971, THE DEPARTMENT OF THE INTERIOR WROTE THE UNITED STATES CIVIL SERVICE COMMISSION (CSC) AND STATED, IN PERTINENT PART, AS FOLLOWS:

"THE GEOLOGICAL SURVEY OF THIS DEPARTMENT IS PROCEEDING WITH PLANS TO MOVE ITS HEADQUARTERS FROM WASHINGTON, D.C. TO RESTON, VIRGINIA. THIS CHANGE IN HEADQUARTERS WILL INVOLVE THE TRANSFER OF APPROXIMATELY 2325 EMPLOYEES IN 17 LOCATIONS (30 BUILDINGS) AROUND THE WASHINGTON, D.C. METROPOLITAN AREA. WHILE TRANSFERS FROM ALL OF THESE LOCATIONS WILL NOT BE COMPLETED UNTIL LATE 1973, THE FIRST GROUP OF EMPLOYEES IS SCHEDULED FOR TRANSFER IN OCTOBER OF THIS YEAR.

ON NOVEMBER 15, 1974, THE CSC IN ITS REPLY TO THE ABOVE-CITED LETTER STATED, IN PERTINENT PART, THAT:

"IN ACCORDANCE WITH OUR LONG-ESTABLISHED RULE, THE PRIMARY QUESTION FOR DETERMINATION IN A RELOCATION OF AN AGENCY'S ACTIVITIES IS WHETHER THE NEW WORKSITE IS OUTSIDE THE COMMUTING AREA APPLICABLE TO THE FORMER WORKSITE. IF THE NEW WORKSITE IS IN THE SAME COMMUTING AREA AS THE OLD, THE SECONDARY QUESTIONS OF DISTANCE, AVAILABILITY AND COST OF TRANSPORTATION FROM AN EMPLOYEE'S HOME NEVER BECOME MATERIAL, AND SEPARATION FOR FAILURE TO ACCOMPANY THE OFFICE TO THE NEW WORKSITE IS PURELY VOLUNTARY.

"WE HAVE CONCLUDED THAT THE RESTON WORKSITE IS WITHIN THE SAME COMMUTING AREA AS THOSE IN ARLINGTON AND MCLEAN, VIRGINIA. CONSEQUENTLY, SHOULD ANY EMPLOYEE WHOSE WORKSITE IS NOW SITUATED IN ONE OF THESE LOCATIONS DECLINE TO TRANSFER TO RESTON, REGARDLESS OF WHERE HIS PLACE OF RESIDENCE IS LOCATED, HIS SEPARATION BY REASON OF DECLINING RELOCATION WILL NOT SUPPORT A FINDING OF INVOLUNTARY SEPARATION FOR EITHER CIVIL SERVICE RETIREMENT OR FOR SEVERANCE PAY PURPOSES.

"WE HAVE ALSO CONCLUDED THAT THE RESTON WORKSITE IS OUTSIDE THE COMMUTING AREA OF YOUR PRESENT WORK SITES LOCATED IN WASHINGTON, D.C., SILVER SPRING, MARYLAND, AND BELTSVILLE, MARYLAND. ACCORDINGLY, THE SEPARATION OR RESIGNATION OF AN EMPLOYEE WHO IS UNABLE TO ACCOMPANY HIS ACTIVITY FROM A WORKSITE IN ONE OF THESE LOCATIONS TO RESTON, BECAUSE TO DO SO WOULD COMPEL HIM TO CHANGE HIS PLACE OF RESIDENCE IN ORDER TO CONTINUE IN EMPLOYMENT, WOULD BE CONSIDERED INVOLUNTARY FOR SEVERANCE PAY AND FOR CIVIL SERVICE RETIREMENT PURPOSES.

"NORMALLY, WHETHER ANY SUCH EMPLOYEE WOULD BE COMPELLED TO CHANGE HIS PLACE OF RESIDENCE IS A JUDGMENTAL DETERMINATION WHICH SHOULD BE BASED ON SUCH FACTORS AS THE INCREASED DISTANCE FROM HOME TO THE NEW LOCATION, INCREASED TIME AND COST OF TRAVEL, AND AVAILABILITY OF TRANSPORTATION. THIS CONNECTION, WE NOTE THE UNAVAILABILITY OF PUBLIC TRANSPORTATION TO RESTON AND IN THIS PARTICULAR SITUATION AN EMPLOYEE (INCLUDING ANY RESIDING IN NORTH WEST WASHINGTON WHOSE WORKSITE IS OUTSIDE THE COMMUTING AREA OF THE NEW RESTON WORKSITE) WHO HAS NO, OR CANNOT OBTAIN, PRIVATE TRANSPORTATION, WILL BE CONSIDERED AS BEING COMPELLED TO CHANGE HIS RESIDENCE IN ORDER TO WORK AT RESTON. IF, ON THE OTHER HAND, TRAVELLING TO RESTON WILL MERELY INCONVENIENCE HIM, HIS SEPARATION FOR FAILURE TO ACCOMPANY THE RELOCATION OF HIS ACTIVITY TO RESTON WOULD NOT SUPPORT A FINDING OF INVOLUNTARY SEPARATION FOR EITHER SEVERANCE PAY OR FOR CIVIL SERVICE RETIREMENT PURPOSES."

SEVERANCE PAY IS AUTHORIZED BY 5 U.S.C. SEC. 5595 WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"(B) UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, AN EMPLOYEE WHO -

"(2) IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY;

IS ENTITLED TO BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE AGENCY FROM WHICH SEPARATED."

BY EXECUTIVE ORDER NO. 11257, DATED NOVEMBER 17, 1965, THE PRESIDENT FORMALLY DELEGATED TO THE CSC THE AUTHORITY TO ISSUE REGULATIONS IMPLEMENTING THE ABOVE PROVISIONS OF LAW. 5 C.F.R. SEC. 550.705 PROVIDES:

"WHEN AN EMPLOYEE IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA, THE SEPARATION IS AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY, UNLESS HIS POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES FOR THESE ASSIGNMENTS."

INITIALLY WE MUST POINT OUT THAT THE RESPONSIBILITY OF DETERMINING THE BASIS FOR A SEPARATION ACTION AND THE TAKING OF SUCH ACTION ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE CSC AND THE AGENCY CONCERNED. WHILE THE TERM "LOCAL COMMUTING AREA" IS NOT DEFINED IN THE SEVERANCE PAY REGULATIONS OF THE CSC, A DEFINITION DOES APPEAR IN THE FEDERAL PERSONNEL MANUAL (FPM), CHAPTER 351, SUBCHAPTER S4-4, FOR THE PURPOSE OF DETERMINING COMPETITIVE AREAS IN CONNECTION WITH REDUCTION IN-FORCE ACTIONS, AND STATES AS FOLLOWS:

"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 WILLINGNESS 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 MAIN CONTENTION OF MR. HELLMANN IS THAT SINCE THE CSC CONCLUDED THAT THE RESTON WORKSITE IS OUTSIDE THE COMMUTING AREA OF THE WASHINGTON, D.C., WORKSITE WHERE HE WAS EMPLOYED, WHEN HE DECLINED TO ACCEPT AN ASSIGNMENT IN RESTON, ANOTHER COMMUTING AREA, UNDER THE PROVISIONS OF 5 C.F.R. SEC. 550.705, HIS RESIGNATION WAS INVOLUNTARY, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, AND HENCE HE IS ENTITLED TO SEVERANCE PAY. WHILE IT IS TRUE THAT THE CSC, IN ITS LETTER OF NOVEMBER 15, 1971, CONCLUDED THAT THE RESTON WORKSITE IS OUTSIDE THE COMMUTING AREA OF THE FORMER WORKSITE IN WASHINGTON, D.C., THE CSC FURTHER STATED, AS QUOTED PREVIOUSLY, THAT "*** THE SEPARATION OR RESIGNATION OF AN EMPLOYEE WHO IS UNABLE TO ACCOMPANY HIS ACTIVITY FROM A WORKSITE IN ONE OF THESE LOCATIONS TO RESTON BECAUSE TO DO SO WOULD COMPEL HIM TO CHANGE HIS PLACE OF RESIDENCE IN ORDER TO CONTINUE IN EMPLOYMENT, WOULD BE CONSIDERED INVOLUNTARY FOR SEVERANCE PAY AND FOR CIVIL SERVICE RETIREMENT PURPOSES ***." IN THIS REGARD, SUBCHAPTER 11-2F, FPM SUPPLEMENT 831-1, IN DEFINING THE MEANING OF "INVOLUNTARY SEPARATION" FOR RETIREMENT ANNUITY PURPOSES, PROVIDES AS FOLLOWS:

"F. CHANGE IN LOCATION OF EMPLOYMENT. WHEN THE LOCATION OF AN OFFICE OR UNIT IS CHANGED BECAUSE OF DECENTRALIZATION, OR BECAUSE OF THE TRANSFER OF THE FUNCTIONS OF AN ORGANIZATIONAL UNIT, AND AN EMPLOYEE IS SEPARATED OR RESIGNS SOLELY BECAUSE HE IS UNABLE FOR FAMILY OR PERSONAL REASONS TO ACCOMPANY THE OFFICE OR UNIT TO ITS NEW LOCATION, THE ACTION IS CONSIDERED INVOLUNTARY IF THE CHANGE IN THE LOCATION OF THE OFFICE OR UNIT IS SUCH THAT THE EMPLOYEE WOULD BE COMPELLED TO CHANGE HIS PLACE OF RESIDENCE IN ORDER TO CONTINUE IN EMPLOYMENT. IF THE NEW LOCATION IS WITHIN REASONABLE AND ORDINARY COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE AND HE FAILS TO ACCOMPANY THE OFFICE OR UNIT TO THE NEW LOCATION, HIS SEPARATION IS NOT CONSIDERED INVOLUNTARY."

OUR REVIEW OF THE CSC'S LETTER AND ITS AFORE CITED REGULATION MAKES IT CLEAR THAT EVEN THOUGH WASHINGTON, D.C., AND RESTON MAY BE IN DIFFERENT COMMUTING AREAS, IN ORDER FOR THE SEPARATION RESIGNATION TO BE CONSIDERED INVOLUNTARY, THE EMPLOYEE MUST BE COMPELLED TO CHANGE HIS RESIDENCE TO CONTINUE EMPLOYMENT WITH THE AGENCY.

IN MAKING THIS JUDGMENTAL DETERMINATION, THE AGENCY MUST LOOK TO THE FACTS AND CIRCUMSTANCES IN EACH PARTICULAR CASE. THE FACTORS FOR CONSIDERATION IN THIS CASE ARE (1) INCREASED DISTANCE FROM HOME TO THE NEW LOCATION, (2) INCREASED TIME AND COST OF TRAVEL, AND (3) AVAILABILITY OF TRANSPORTATION. SEE CSC'S LETTER OF NOVEMBER 15, 1971, CITED, SUPRA.

THE INCREASED DISTANCE FROM MR. HELLMANN'S HOME IN POTOMAC, MARYLAND, TO THE NEW WORKSITE IN RESTON AS REPORTED IN HIS APPLICATION FOR SEVERANCE PAY DATED SEPTEMBER 6, 1973, WAS FROM 10 MILES TO APPROXIMATELY 22 MILES, AN INCREASE OF ABOUT 12 MILES. HE ALSO REPORTED AN INCREASE IN TRAVEL TIME FROM 20 MINUTES TO 40 MINUTES, AN INCREASE OF 20 MINUTES, AND THAT HIS TRAVEL COSTS WOULD DOUBLE IN AMOUNT. IN VIEW OF THE RELATIVELY MODEST INCREASES IN THE DISTANCE, TIME, AND COST OF COMMUTING TO AND FROM THE CLAIMANT'S HOME AND NEW WORKSITE IN RESTON, IT WOULD APPEAR THAT IT IS NOT UNREASONABLE PER SE FOR HIS AGENCY TO CONCLUDE THAT THE NEW WORKSITE IN RESTON IS NOT SO FAR FROM MR. HELLMANN'S HOME IN POTOMAC, MARYLAND, AS TO REQUIRE HIM TO SELL HIS PRESENT HOME TO REACH HIS PLACE OF WORK.

WE HAVE NOTED MR. HELLMANN'S SUBSEQUENT STATEMENT ATTACHED TO HIS EXPLANATION FOR SEVERANCE PAY IN WHICH HE REPORTS THAT THE ADDITIONAL TRAVEL TIME FROM HIS RESIDENCE TO RESTON WOULD HAVE BEEN 20 TO 25 MILES AND THE ADDITIONAL TIME REQUIRED WOULD HAVE BEEN AS MUCH AS 40 MINUTES LONGER. HOWEVER, THE AGENCY REPORTS THAT INFORMATION RECEIVED FROM EMPLOYEES NOW COMMUTING FROM POTOMAC TO RESTON INDICATES THAT THE ESTIMATES CONTAINED IN THE ORIGINAL APPLICATION BY MR. HELLMANN ARE MORE ACCURATE.

WITH RESPECT TO THE AVAILABILITY OF TRANSPORTATION, THE CLAIMANT STATES THAT HE OWNS A PRIVATE AUTOMOBILE WHICH HE COULD USE FOR TRANSPORTATION TO AND FROM WORK BUT THAT DUE TO UNPREDICTABLE MECHANICAL FAILURES, SUCH MODE OF TRANSPORTATION IS UNRELIABLE. HOWEVER, IT IS THE RESPONSIBILITY OF THE EMPLOYEE WHEN HE USES PRIVATE CONVEYANCE IN REPORTING TO WORK TO MAINTAIN HIS PRIVATE CONVEYANCE IN SATISFACTORY OPERATING CONDITION SO AS TO HAVE A RELIABLE MEANS OF TRANSPORTATION TO AND FROM WORK. THE NONAVAILABILITY OF PUBLIC TRANSPORTATION IS NOT A CONTROLLING FACTOR SINCE IT IS SHOWN THAT MR. HELLMANN RARELY USED PUBLIC TRANSPORTATION FOR COMMUTING WHEN WORKING IN WASHINGTON, D.C., BUT USED HIS PRIVATELY OWNED AUTOMOBILE FOR TRANSPORTATION WHICH HE COULD HAVE USED IF HE HAD ACCEPTED THE MOVE TO RESTON. ALSO, OTHER GEOLOGICAL SURVEY EMPLOYEES ARE NOW COMMUTING BETWEEN POTOMAC AND RESTON.

BASED UPON THE FOREGOING, THIS OFFICE DOES NOT REGARD THE DECISION OF THE RESTON MOVE ELIGIBILITY BOARD OF THE GEOLOGICAL SURVEY IN DENYING ENTITLEMENT OF MR. HELLMANN TO SEVERANCE PAY AS BEING ERRONEOUS, ARBITRARY, OR CAPRICIOUS.

THEREFORE WE MUST SUSTAIN THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING MR. HELLMANN'S CLAIM FOR SEVERANCE PAY.