B-177790, MAR 15, 1973
Highlights
AN EMPLOYEE IS ENTITLED TO SEVERANCE PAY ONLY ON THE BASIS OF AN INVOLUNTARY SEPARATION. SINCE NO SUGGESTION OF RESIGNATION WAS MADE BY THE ADMINISTRATIVE OFFICIALS INVOLVED. SINCE THE EMPLOYEE COULD EASILY HAVE PURSUED THE QUESTION OF HIS ELIGIBILITY FOR ELEMENTARY PRINCIPAL TO A HIGHER AUTHORITY. IT CANNOT BE SAID HIS RESIGNATION WAS INVOLUNTARY. HALBUR: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11. THE RECORD SHOWS THAT AT THE TIME OF YOUR RESIGNATION YOU WERE EMPLOYED AS A PRINCIPAL-TEACHER AT THE PROMISE DAY SCHOOL. THE APPARENT CAUSE BEING AN ADMINISTRATIVE DETERMINATION THAT YOU WERE INELIGIBLE FOR THE POSITION OF ELEMENTARY PRINCIPAL AT THE CHEYENNE EAGLE BUTT SCHOOL. THIS DETERMINATION WAS BASED ON A CHECK OF YOUR CERTIFICATION FILE AT THE OFFICE OF CERTIFICATION.
B-177790, MAR 15, 1973
CIVILIAN PAY - SEVERANCE PAY - INVOLUNTARY RESIGNATION DECISION DENYING THE CLAIM OF MARLOWE E. HALBUR FOR SEVERANCE PAY INCIDENT TO HIS RESIGNATION FROM EMPLOYMENT WITH THE BUREAU OF INDIAN AFFAIRS. AN EMPLOYEE IS ENTITLED TO SEVERANCE PAY ONLY ON THE BASIS OF AN INVOLUNTARY SEPARATION, AS OUTLINED IN 5 CFR 550-706(A). IN THIS CASE, SINCE NO SUGGESTION OF RESIGNATION WAS MADE BY THE ADMINISTRATIVE OFFICIALS INVOLVED, AND SINCE THE EMPLOYEE COULD EASILY HAVE PURSUED THE QUESTION OF HIS ELIGIBILITY FOR ELEMENTARY PRINCIPAL TO A HIGHER AUTHORITY, IT CANNOT BE SAID HIS RESIGNATION WAS INVOLUNTARY.
TO MR. MARLOWE E. HALBUR:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11, 1972, REQUESTING RECONSIDERATION OF THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED NOVEMBER 30, 1972, DENYING YOUR CLAIM FOR SEVERANCE PAY INCIDENT TO YOUR RESIGNATION FROM EMPLOYMENT WITH THE BUREAU OF INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR.
THE RECORD SHOWS THAT AT THE TIME OF YOUR RESIGNATION YOU WERE EMPLOYED AS A PRINCIPAL-TEACHER AT THE PROMISE DAY SCHOOL, CHEYENNE RIVER AGENCY, EAGLE BUTT, SOUTH DAKOTA. YOU RESIGNED ON MAY 4, 1971, THE APPARENT CAUSE BEING AN ADMINISTRATIVE DETERMINATION THAT YOU WERE INELIGIBLE FOR THE POSITION OF ELEMENTARY PRINCIPAL AT THE CHEYENNE EAGLE BUTT SCHOOL. THIS DETERMINATION WAS BASED ON A CHECK OF YOUR CERTIFICATION FILE AT THE OFFICE OF CERTIFICATION, SOUTH DAKOTA STATE DEPARTMENT OF PUBLIC INSTRUCTION, WHICH REVEALED THAT YOU WERE CERTIFIED FOR "ELEMENTARY AS A TEACHER, BUT NOT AS A PRINCIPAL." THE ADMINISTRATIVE AGENCY REPORTS THAT IT IS THE SOLE RESPONSIBILITY OF EACH TEACHER TO MAINTAIN A CURRENT CLASSIFICATION FILE.
THE BASIS OF YOUR CLAIM FOR SEVERANCE PAY IS THAT YOUR RESIGNATION WAS INVOLUNTARY. TO SUPPORT THIS APPEAL, YOU HAVE SUBMITTED A COPY OF A TEACHER CERTIFICATE WHICH WAS ISSUED BY THE ABOVE OFFICE OF CERTIFICATION ON OCTOBER 12, 1965. THIS CERTIFICATE ESTABLISHES THAT YOU WERE IN FACT CERTIFIED AS AN ELEMENTARY PRINCIPAL AT THE TIME YOU WERE DECLARED INELIGIBLE FOR THE ABOVE POSITION. YOU ALSO STATE THAT THIS CLAIM IS BASED ON THE FACT THAT THE PERSONNEL OFFICER OF THE BUREAU OF INDIAN AFFAIRS, ABERDEEN AREA OFFICE, ABERDEEN, SOUTH DAKOTA, WAS INEFFICIENT IN NOT ACCEPTING THE TEACHER CERTIFICATE DATED OCTOBER 12, 1965. IT APPEARS THEN THAT THE FOUNDATION OF YOUR CONTENTION THAT YOUR RESIGNATION WAS INVOLUNTARY IS THAT THE PERSONNEL OFFICER'S ACTION IN NOT RECOGNIZING THE CERTIFICATE FORCED YOU TO RESIGN.
UNDER THE LAW (5 U.S.C. 5595) AN EMPLOYEE IS ENTITLED TO SEVERANCE PAY ONLY ON THE BASIS OF AN INVOLUNTARY SEPARATION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. SECTION 550.706(A) OF TITLE 5, CODE OF FEDERAL REGULATIONS, ISSUED PURSUANT TO 5 U.S.C. 5595, SETS OUT THE SPECIFIC CIRCUMSTANCES UNDER WHICH A SEPARATION MAY BE REGARDED AS INVOLUNTARY FOR THE PURPOSE OF SEVERANCE PAY ENTITLEMENT WHEN THE SEPARATION IS INCIDENT TO A RESIGNATION. UNDER PARAGRAPH (A) THE EMPLOYEE MUST HAVE RESIGNED (1) AFTER RECEIVING A SPECIFIC NOTICE IN WRITING BY HIS AGENCY THAT HE IS TO BE INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, (2) AFTER RECEIPT OF A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS AGENCY, (3) AFTER RECEIPT OF A NOTICE BY HIS AGENCY PROPOSING TO SEPARATE HIM FOR DECLINING TO ACCOMPANY HIS ACTIVITY WHEN IT IS TO BE MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION, AND WHEN ALL POSITIONS IN HIS COMPETITIVE AREA ARE TO BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA WITHIN A PERIOD OF NOT MORE THAN 1 YEAR. PARAGRAPH (B) OF THE SAME SECTION SPECIFICALLY PROVIDES THAT WHEN A RESIGNATION IS UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES SPECIFIED IN PARAGRAPH (A), SEPARATION OF THE EMPLOYEE BY RESIGNATION IS A VOLUNTARY SEPARATION.
IT IS CLEAR THAT YOUR RESIGNATION DID NOT FALL WITHIN THE PURVIEW OF THE ABOVE REGULATIONS SO AS TO CONSTITUTE YOUR RESIGNATION AN INVOLUNTARY SEPARATION FROM THE SERVICE FOR PURPOSE OF SEVERANCE PAY. MOREOVER, WE DO NOT REGARD YOUR RESIGNATION OTHERWISE AS BEING AN INVOLUNTARY SEPARATION FROM THE SERVICE. WE POINT OUT THAT NO SUGGESTION OF RESIGNATION WAS MADE TO YOU BY THE ADMINISTRATIVE OFFICIALS INVOLVED. AS A MATTER OF FACT, ONE OF THE OFFICIALS ENCOURAGED YOU TO REMAIN ON THE ROLLS.
IT SEEMS TO US THE MORE APPROPRIATE COURSE OF ACTION WOULD HAVE BEEN FOR YOU TO PURSUE THE QUESTION OF YOUR ELIGIBILITY FOR ELEMENTARY PRINCIPAL TO A HIGHER AUTHORITY, IF AS YOU INDICATE CLEAR EVIDENCE OF YOUR ELIGIBILITY EXISTED. IF YOU HAD DONE SO, IT IS REASONABLE TO ASSUME THAT THIS MATTER COULD HAVE BEEN ADMINISTRATIVELY CORRECTED TO YOUR SATISFACTION.
IN VIEW OF THE FOREGOING, THE SETTLEMENT OF NOVEMBER 30, 1972, DISALLOWING YOUR CLAIM FOR SEVERANCE PAY, MUST BE SUSTAINED.