B-226833, AUGUST 10, 1987, 66 COMP.GEN. 609

B-226833, AUGUST 10, 1987, 66 COMP.GEN. 609

CIVILIAN PERSONNEL - COMPENSATION - SEVERANCE PAY - ELIGIBILITY - REDUCTION-IN-FORCE - NOTIFICATION TWO EMPLOYEES 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 EMPLOYEES ARE NOT ELIGIBLE FOR SEVERANCE PAY UNDER 5 U.S.C. 5595, BECAUSE IMPLEMENTING REGULATIONS ALLOW SEVERANCE PAY ONLY IF AN EMPLOYEE RESIGNS SUBSEQUENT TO SPECIFIC NOTICE OF A RIF ACTION (5 C.F.R. 550.706(A)(1)) OR GENERAL NOTICE THAT ALL POSITIONS WITHIN THE EMPLOYEE'S COMPETITIVE AREA WILL BE ABOLISHED (5 C.F.R. 550.706(A)(2)). THE RIF NOTICE THAT THE EMPLOYEES RECEIVED BEFORE RESIGNING DID NOT QUALIFY AS A GENERAL NOTICE UNDER 5 C.F.R. 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 TWO EMPLOYEES WHO RESIGNED FOLLOWING A GENERAL ANNOUNCEMENT OF A PROPOSED REDUCTION IN FORCE (RIF) CONTEND 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.

CARMEN G. BENABE AND HOWELL E. BELL - SEVERANCE PAY:

MS. CARMEN G. BENABE AND MR. HOWELL E. BELL, FORMER EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION (FAA), HAVE APPEALED OUR CLAIMS GROUP'S SETTLEMENT DENYING THEIR CLAIMS FOR SEVERANCE PAY. WE SUSTAIN OUR CLAIMS GROUP'S SETTLEMENT BECAUSE, AS EXPLAINED BELOW, MS. BENABE AND MR. BELL 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. BENABE AND MR. BELL WERE 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. BENABE AND MR. BELL. ONE OF THE SUBCONTRACTORS SELECTED TO ASSUME THE MEMPHIS CENTER'S FUNCTIONS OFFERED TO HIRE SEVERAL OF THE CENTER'S AUTOMATION AND TRAINING SPECIALISTS, INCLUDING MS. BENABE AND MR. BELL. BOTH EMPLOYEES TENTATIVELY ACCEPTED THE SUBCONTRACTOR'S OFFER OF EMPLOYMENT ON JUNE 18, 1986.

ON JUNE 23, 1986, FAA ISSUED A GENERAL NOTICE OF A RIF TO MS. BENABE, MR. BELL, AND OTHER AUTOMATION AND TRAINING PERSONNEL AT THE MEMPHIS CENTER, PURSUANT TO THE RIF NOTICE REQUIREMENTS CONTAINED IN 5 C.F.R. 351.801- 351.807. 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. THE NOTICE STATED THAT, AS SOON AS FAA DETERMINED THE APPROPRIATE PERSONNEL ACTION, IT WOULD PROVIDE THE EMPLOYEES WITH A SPECIFIC RIF NOTICE AT A MINIMUM OF 10 DAYS BEFORE THE EFFECTIVE DATE OF THE PERSONNEL ACTION.

IN LATE AUGUST 1986, MS. BENABE AND MR. BELL SUBMITTED THEIR RESIGNATIONS TO FAA, BOTH EFFECTIVE SEPTEMBER 13, 1986. ON SEPTEMBER 14, 1986, MS. BENABE AND MR. BELL BEGAN EMPLOYMENT WITH THE PRIVATE CONTRACTOR. SEPTEMBER 15, 1986, FAA ISSUED SPECIFIC RIF NOTICES TO AUTOMATION AND TRAINING PERSONNEL AT THE MEMPHIS CENTER.

MS. BENABE AND MR. BELL APPLIED TO FAA FOR SEVERANCE PAY, BUT FAA DENIED THEIR CLAIMS ON THE BASIS THAT THEIR RESIGNATIONS DID NOT CONSTITUTE INVOLUNTARY SEPARATIONS UNDER REGULATIONS GOVERNING SEVERANCE PAY CONTAINED IN 5 C.F.R. 550.706. SPECIFICALLY, FAA FOUND THAT THE EMPLOYEES HAD NOT RESIGNED FOLLOWING SPECIFIC NOTICE OF THE PERSONNEL ACTION TO BE TAKEN AGAINST THEM, AS REQUIRED BY 5 C.F.R. 550.706(A)(1), OR AFTER A GENERAL RIF NOTICE ANNOUNCING THAT ALL POSITIONS WITHIN THEIR COMPETITIVE AREA WOULD BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA, AS REQUIRED BY 5 C.F.R. 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 REGULATION BECAUSE:

"IT IS IMPORTANT TO NOTE THAT THE GENERAL NOTICE MUST ANNOUNCE THAT ALL POSITIONS IN THE COMPETITIVE AREA WILL BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA. *** IN THE CASE OF THE REDUCTION-IN-FORCE AT THE MEMPHIS CENTER THE COMPETITIVE AREA WAS THE 'MEMPHIS LOCAL COMMUTING AREA' WHICH INCLUDES ALL POSITIONS WITHIN THE VARIOUS FAA ORGANIZATIONS. HOWEVER, ALL POSITIONS IN THE MEMPHIS COMMUTING AREA WERE NOT ABOLISHED; ONLY THOSE POSITIONS ASSOCIATED WITH THE ENROUTE/AUTOMATION FUNCTION WERE INVOLVED."

OUR CLAIMS GROUP CONCURRED WITH FAA'S DETERMINATION, CONCLUDING THAT THE GENERAL RIF NOTICE ISSUED BEFORE THE EMPLOYEES' RESIGNATIONS DID NOT PROVIDE A BASIS FOR ALLOWING THEM SEVERANCE PAY BECAUSE IT DID NOT ANNOUNCE THE ABOLISHMENT OF ALL POSITIONS WITHIN THE EMPLOYEES' LOCAL COMMUTING AREA.

MS. BENABE AND MR. BELL CLAIM THAT THEY ARE ENTITLED TO SEVERANCE PAY BECAUSE THEIR RESIGNATIONS WERE INVOLUNTARY. THEY CONTEND THAT THE GENERAL NOTICE UNDER WHICH THEY RESIGNED ACTUALLY CONSTITUTED A "SPECIFIC NOTICE" QUALIFYING THEM 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. BENABE AND MR. BELL CONTEND THAT FAA DID NOT FOLLOW PROPER PROCEDURES IN CONDUCTING THE MEMPHIS CENTER RIF. THEY ALLEGE 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. 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. 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. 550.706(A)(2)); OR (2) A SPECIFIC NOTICE OF INVOLUNTARY SEPARATION (5 C.F.R. 550.706(A)(1)). A SPECIFIC NOTICE IN THE CONTEXT OF A RIF MUST APPRISE THE EMPLOYEE OF THE PARTICULAR PERSONNEL ACTION TO BE TAKEN AGAINST HIM, AND ITS EFFECTIVE DATE. SEE 5 C.F.R. 351.802 AND 351.803. IF AN AGENCY DETERMINES ON THE BASIS OF AVAILABLE FACTS AND CIRCUMSTANCES THAT AN EMPLOYEE'S RESIGNATION WAS NOT RELATED TO ONE OF THE TYPES OF NOTICES SPECIFIED IN 5 C.F.R. 550.706(A), THE EMPLOYEE'S RESIGNATION CONSTITUTES A VOLUNTARY SEPARATION AND HE IS PRECLUDED FROM RECEIVING SEVERANCE PAY UNDER 5 U.S.C. 5595. SEE 5 C.F.R. 550.706(B).

WE FIND 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. 550.706(A). ALTHOUGH FAA ISSUED A GENERAL RIF NOTICE BEFORE THE EMPLOYEES RESIGNED, THIS NOTICE ANNOUNCED THE CONTEMPLATED ABOLISHMENT OF CERTAIN AUTOMATION AND TRAINING POSITIONS AT THE MEMPHIS CENTER AND NOT ALL OF FAA'S POSITIONS IN THE MEMPHIS COMMUTING AREA, AS REQUIRED BY 5 C.F.R. 550.706(A)(2). MS. BENABE AND MR. BELL DID NOT MEET THE SPECIFIC NOTICE REQUIREMENT IN 5 C.F.R. 550.706(A)(1), BECAUSE THEY RESIGNED BEFORE FAA ISSUED NOTICE OF THE SPECIFIC PERSONNEL ACTIONS TO BE EFFECTED PURSUANT TO THE MEMPHIS CENTER RIF. ACCORDINGLY, THE EMPLOYEES' RESIGNATIONS MUST BE CONSIDERED VOLUNTARY, AND THEY ARE PRECLUDED FROM RECEIVING SEVERANCE PAY UNDER 5 U.S.C. 5595. SEE GENERALLY 54 COMP.GEN. 154 (1974); 45 COMP.GEN. 784 (1966).

AS MENTIONED PREVIOUSLY, MS. BENABE AND MR. BELL CITE AN OPM ADVISORY OPINION FOR THE PROPOSITION THAT FAA'S GENERAL NOTICE ACTUALLY CONSTITUTED A "SPECIFIC NOTICE" FOR PURPOSES OF ALLOWING THEM SEVERANCE PAY FOR THEIR SUBSEQUENT RESIGNATIONS. HOWEVER, THE OPM ADVISORY OPINION IN QUESTION CONCLUDED ONLY THAT FAA'S GENERAL NOTICE CONTAINED SUFFICIENTLY SPECIFIC INFORMATION CONCERNING THE PROPOSED ABOLISHMENT OF POSITIONS AT THE MEMPHIS CENTER TO QUALIFY EMPLOYEES FOR DISCONTINUED SERVICE RETIREMENT UNDER 5 U.S.C. 8336(D) (1982 SUPP. III 1985), AS IMPLEMENTED BY FEDERAL PERSONNEL MANUAL (FPM) SUPP. NO. 831-1, S11 (INST. 31, SEPTEMBER 21, 1981). THE OPM HAS EXCLUSIVE RESPONSIBILITY FOR DETERMINING THE CONDITIONS UNDER WHICH DISCONTINUED SERVICE RETIREMENT MAY BE APPROVED, AND OPM OFFICIALS HAVE 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.

FINALLY, ALTHOUGH MS. BENABE AND MR. BELL CONTEND THAT 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 PROPER RIF PROCEDURES MUST EITHER PURSUE THE MATTER THROUGH A NEGOTIATED GRIEVANCE PROCEDURE, IF AVAILABLE, OR FILE AN APPEAL WITH THE MERIT SYSTEMS PROTECTION BOARD. SEE 5 C.F.R. 351.901. SEE ALSO FPM, CH. 351, S7 (INST. 263, JULY 7, 1981).

ACCORDINGLY, FOR THE REASONS STATED ABOVE, WE SUSTAIN OUR CLAIMS GROUP'S DETERMINATION THAT MS. BENABE AND MR. BELL ARE NOT ENTITLED TO SEVERANCE PAY.