B-182419, APR 18, 1975

B-182419, APR 18, 1975

WAGE BOARD EMPLOYEE IN REDUCTION-IN-FORCE SITUATION DECLINED OFFER OF LOWER GRADE POSITION IN SAME AREA WITH HIGHER HOURLY PAY RATE. EMPLOYEE IS NOT ENTITLED TO SEVERANCE PAY SINCE CSC REGULATION PROVIDES THAT WHEN EMPLOYEE DECLINES OFFER OF EQUIVALENT POSITION IN SAME COMMUTING AREA HE IS NOT ENTITLED TO SUCH PAY AND EQUIVALENT OFFER MAY CONSIST OF POSITION IN LOWER GRADE PROVIDED SALARY RATE IS THE SAME OR HIGHER THAN CURRENT RATE. ALSO, ERRONEOUS AGENCY ADVICE TO EMPLOYEE AS TO ENTITLEMENT PROVIDES NO BASIS FOR MAKING SUCH PAYMENT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY.

ELVIN T. ARNOLD - SEVERANCE PAY - EQUIVALENT POSITION:

THIS ACTION IS A RECONSIDERATION OF THE CLAIM OF MR. ELVIN T. ARNOLD FOR SEVERANCE PAY INCIDENT TO SEPARATION FROM A POSITION WITH THE DEPARTMENT OF THE ARMY. THE CLAIM WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION FOR THE REASONS SET FORTH IN ITS SETTLEMENT CERTIFICATE OF JULY 5, 1974.

THE RECORD INDICATES THAT MR. ARNOLD OCCUPIED A POSITION AT FORT WAINWRIGHT, ALASKA, AS MOBILE INDUSTRIAL EQUIPMENT MAINTENANCE MECHANIC FOREMAN, WS-5801-12, AT $7.95 PER HOUR. PURSUANT TO A REDUCTION IN FORCE HE WAS OFFERED ON JULY 31, 1970, A POSITION OF MOBILE INDUSTRIAL EQUIPMENT OPERATOR FOREMAN, WS-5701-07, AT $7.99 PER HOUR. HE WAS ADVISED ERRONEOUSLY BY EMPLOYEES OF THE PERSONNEL OFFICE THAT HE NEED NOT ACCEPT THE POSITION OFFERED HIM, BUT COULD ELECT TO PERMIT HIS SEPARATION TO BE EFFECTED AT WHICH TIME HE WOULD BE ENTITLED TO SEVERANCE PAY. AFTER HIS SEPARATION EFFECTIVE SEPTEMBER 30, 1970, AND RELYING ON THE ERRONEOUS ADVICE, MR. ARNOLD HAD SENT HIS CHILDREN TO TEXAS FOR SCHOOL ENROLLMENT AND OTHERWISE MADE PREPARATION TO MOVE TO TEXAS. SOME 20 DAYS AFTER HIS SEPARATION THE ERROR WAS DISCOVERED AND MR. ARNOLD WAS ADVISED THAT HE WAS NOT ENTITLED TO SEVERANCE PAY SINCE HE HAD DECLINED THE OFFER OF THE POSITION OF WS-5701-07, WHICH WAS OF LIKE TENURE TO HIS FORMER POSITION AND OF HIGHER PAY. MR. ARNOLD WAS AGAIN OFFERED THAT POSITION WHICH HE DECLINED.

MR. ARNOLD URGES THAT IT WAS NOT UNTIL OCTOBER 20, 1970, WHEN HE WAS AGAIN OFFERED THE WS-5701-07 POSITION THAT HE WAS TOLD THERE WAS AN EQUIVALENT POSITION AVAILABLE AND THUS THE RULE PRECLUDING SEVERANCE PAY ON FAILURE TO ACCEPT SUCH OFFER SHOULD NOT APPLY.

CIVIL SERVICE 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 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 REGULATION AND GUIDELINE, THE POSITION OFFERED MR. ARNOLD ON JULY 31, 1970 - WELL BEFORE THE EFFECTIVE DATE OF HIS SEPARATION - CONSTITUTED AN OFFER OF AN EQUIVALENT POSITION. SINCE HE DECLINED SUCH POSITION, HE IS NOT ENTITLED TO SEVERANCE PAY. THE FACT THAT MR. ARNOLD WAS ADVISED IN ERROR BY HIS AGENCY AS TO HIS ENTITLEMENT TO SEVERANCE PAY PROVIDES NO BASIS OF MAKING SUCH PAYMENT. WHILE IT IS REGRETTABLE THAT HE WAS MISLED BY SUCH ADVICE, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES IN THE ABSENCE OF SPECIFIC AUTHORITY ON THE MATTER. SEE GERMAN BANK V. UNITED STATES, 148 U.S. 573 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942).

SINCE ON REVIEW THE RECORD SHOWS THAT MR. ARNOLD DECLINED THE OFFER OF AN EQUIVALENT POSITION IN THE SAME COMMUTING AREA, WE CAN ONLY SUSTAIN THE DISALLOWANCE OF HIS CLAIM FOR SEVERANCE PAY.