B-227506, Jan 29, 1988

B-227506, Jan 29, 1988

CIVILIAN PERSONNEL - Compensation - Severance Pay - Eligibility - Reduction-in-Force - Notification DIGEST: 1. Employee resigned following a general announcement of a proposed reduction in force (RIF) but before the agency issued specific notice of personnel actions to be effected pursuant to the RIF. The employee is not eligible for severance pay under 5 U.S.C. Sec. 5595, because implementing regulations allow severance pay only if an employee resigns subsequent to specific notice of a RIF action (5 C.F.R. Sec. 550.706(a)(1)) or general notice that all positions within the employee's competitive area will be abolished (5 C.F.R. Sec. 550.706(a)(2)). The RIF notice that the employee received before resigning did not qualify as a general notice under 5 C.F.R. Sec. 550.706(a)(2) because it did not announce the abolishment of all positions within the employee's competitive area. CIVILIAN PERSONNEL - Compensation - Reduction-in-Force - Procedural Defects 2. Employee who resigned following a general announcement of a proposed reduction in force (RIF) contends that the agency did not follow proper procedures in conducting the RIF. This Office cannot consider the employees' contention because challenges to agency RIF actions must either be processed through a negotiated grievance procedure, if applicable, or presented to the Merit Systems Protection Board.

Fannie M. Sallie - Severance Pay:

Ms. Fannie M. Sallie, a former employee of the Federal Aviation Administration (FAA), has appealed our Claims Group's settlement denying her claim for severance pay. We sustain our Claims Group's settlement because, as explained below, Ms. Sallie resigned from FAA without having received the general or specific notice of a reduction in force (RIF) required by the regulations governing severance pay.

BACKGROUND

Ms. Sallie was formerly employed at the Memphis Air Route Traffic Control Center (Memphis Center) in FAA's Southern Region. In mid-June 1986, FAA announced its intention to contract out approximately one half of the Memphis Center's automation and training functions, including functions performed by Ms. Sallie. On June 23, 1986, FAA issued a general notice of a RIF to Ms. Sallie and other automation and training personnel at the Memphis Center. The general notice apprised automation and training employees that their positions would be abolished no later than September 30, 1986, but it stated that FAA had not yet determined the specific personnel actions to be effected pursuant to the RIF, such as reassignment, demotion, or separation from the service.

In late August 1986, Ms. Sallie submitted her resignation to FAA, effective September 13, 1986. On September 14, 1986, Ms. Sallie began employment with the Private contractor selected to assume the Memphis Center's functions. On September 15, 1986, FAA issued specific RIF notices to automation and training personnel at the Memphis Center. Ms. Sallie applied to FAA for severance pay, but FAA denied her claim on the basis that her resignation did not constitute an involuntary separation under regulations governing severance pay contained in 5 C.F.R. Sec. 550.706. Specifically, FAA found that Ms. Sallie had not resigned following specific notice of the personnel action to be taken against her as required by 5 C.F.R. Sec. 550.706(a)(1), or after a general RIF notice announcing that all positions within her competitive area would be abolished or transferred to another commuting area, as required by 5 C.F.R. Sec. 550.706(a)(2). The FAA explained that the general RIF notice it had issued on June 23, 1986, was not the type required by the regulations.

Our Claims Group concurred with FAA's determination, concluding that the general RIF notice issued before the employee's resignation did not provide a basis for allowing her severance pay because it did not announce the abolishment of all positions within the employee's local commuting area.

Ms. Sallie claims that she is entitled to severance pay because her resignation was involuntary. She contends that the general notice under which she resigned actually constituted a "specific notice" qualifying her for severance pay, because the Office of Personnel Management (OPM) had determined in an advance opinion issued to FAA that the notice contained sufficiently specific information to qualify employees for discontinued service retirement. Also, Ms. Sallie contends that FAA did not follow proper procedures in conducting the Memphis Center RIF. She alleges that FAA officials failed to provide employees with accurate information during the RIF, and that the RIF procedures followed by the Southern Region were different from those used by other FAA regions in contracting-out situations.

DISCUSSION

Under 5 U.S.C. Sec. 5595(b)(2) (1982), an employee is entitled to receive severance pay only if he has been "involuntarily" separated for reasons other than misconduct, delinquency, or inefficiency. Implementing regulations set forth in 5 C.F.R. Sec. 550.706(a) provide that an employee's separation by resignation may be considered involuntary only if the employee resigns following one of several types of notice, including: (1) a general RIF notice which announces that all positions in his competitive area will be abolished or transferred to another commuting area (5 C.F.R. Sec. 550.706(a)(2)); or (2) a specific notice of involuntary separation (5 C.F.R. Sec. 550.706(a)(1)).

In the recent decision of our Office, Carmen G. Benabe and Howell E. Bell, B-226833, August 10, 1987, 66 Comp.Gen.***, we denied claims by two of Ms. Sallie's automation and training specialist colleagues at the Memphis Center which were identical to the claim for severance pay now brought before our Office by Ms. Sallie. In analyzing the identical claims of Ms. Sallie's colleagues, Ms. Benabe and Mr. Bell, we found no basis for questioning FAA's determination that Ms. Benabe and Mr. Bell resigned without having received either the general or specific notice required by 5 C.F.R. Sec. 550.706(a). The general RIF notice issued by the FAA did not announce the contemplated abolishment of all of FAA's positions in the Memphis commuting area as required by 5 C.F.R. Sec. 550.706(a)(2). Our earlier decision also found that the specific notice requirement in 5 C.F.R. Sec. 550.706(a)(1) was not met because the employees resigned before the FAA issued a notice of specific personnel actions to be effected pursuant to the Memphis Center RIF. As to the OPM advance opinion that the FAA notice was specific enough to qualify employees for discontinued service retirement, our earlier decision noted that OPM had advised us that an advance determination that a particular notice qualifies employees for discontinued service retirement has no bearing on the legal effect of the notice for purposes of determining employees' eligibility for severance pay. In response to Ms. Sallie's contention that the FAA did not follow proper procedures in conducting the Memphis Center RIF, we do not have jurisdiction to consider this contention. An employee claiming that an agency did not use orooer RIF procedures must either pursue the matter through a negotiated grievance procedure, if available, or file an appeal with the Merit Systems Protection Board. Carmen A. Benable and Howell E. Bell, supra.

Accordingly, for the reasons stated above, we sustain our Claims Group's determination that Ms. Sallie is not entitled to severance pay.