002853

Office of the General Counsel

Matter of: [xxx]
File Number: 002853
Date: October 26, 1999

OPM Contact: Jo-Ann Chabot

A former federal employee filed a claim for severance pay resulting from a reduction-in-force (RIF) at the [agency]. The claim is denied for the reasons stated below.

The claimant worked at [xxx] prior to her separation from employment as the result of a RIF. She did not accept the agency's offer of a position in [xxx]. Consequently, the claimant was separated from employment without receiving severance pay. The claimant disagrees with the agency's decision that the position offered to her in lieu of separation was within her commuting area and, therefore, believes that she is entitled to severance pay. According to 5 CFR 550.704(b)(2), an employee who declines a reasonable offer is not eligible for severance pay. The definition of "reasonable offer," at 5 CFR 550.703, requires that the offered position is "within the employee's commuting area, unless geographic mobility is a condition of employment." The agency reported that geographic mobility was not a condition of the claimant's employment. Section 550.703 provides that a "commuting area" is "the geographic area that normally is considered one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities where people live and reasonably can be expected to travel back and forth daily to work." OPM and the agency determine commuting areas, and the agency's determination is not subject to question unless the determination is arbitrary, capricious, or clearly erroneous. Matter of Janice N. Addison, B-225229 (Nov. 3, 1987); Matter of Vivian W. Spencer, B-210524 (June 6, 1983).

The agency reported that, in connection with entitlement to severance pay, it used the employee's residence as the basis for determining her commuting area. The agency estimated that the claimant's residence in [xxx] was approximately 15 miles from her former worksite in [xxx], and the distance from her residence to her proposed worksite in [xxx] was 23.7 miles. The agency further reported that a 23.7-mile commute is not unusually long for suburban areas in the [xxx] metropolitan area and it is quite common for residents of [xxx] to commute to downtown [xxx]. The agency noted that public transportation is available, much of the commute from the claimant's residence to downtown [xxx] would have occurred on interstate highways, and the portion of her commute in the city would have occurred on four-lane streets with a typical speed limit of 45 miles per hour.

The agency's determination of commuting area in this case was not arbitrary, capricious, or clearly erroneous. Using the claimant's residence as the basis for determining the commuting area for purposes of eligibility for severance pay was reasonable in view of [xxx]'s location between [xxx] and [xxx]. Even though the driving distance from [xxx] to [xxx] is longer than the distance from [xxx] to [xxx], the difference between the two distances is not significant. Moreover, most of the drive from [xxx] to [xxx] was not an unusually long commute by [xxx] area standards, involved travel over major highways and urban thoroughfares, was commonplace for other residents of [xxx], and alternatively could be accomplished by taking public transportation. All of these circumstances clearly show that the agency's decision concerning the claimant's commuting area was not arbitrary, capricious or erroneous, and that the agency's offer to the claimant was a reasonable offer. Because the claimant did not accept the offer, she is not eligible to receive severance pay. Therefore, her claim for severance pay is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.