Appeal of

JAMES M. GRYSIAK

PSBCA No. 6282

Under Contract No. HCR 193B0

APPEARANCE FOR APPELLANT:
Jose Louis Ongay, Esq.

APPEARANCE FOR RESPONDENT:
Joseph Anzalone, Esq.
Office of the General Counsel
United States Postal Service

OPINION OF THE BOARD

            Appellant, James M. Grysiak, has filed an appeal from the contracting officer’s termination for default of his mail delivery contract with Respondent, United States Postal Service, and from Respondent’s assessment of damages allegedly incurred as a result of the default.  Appellant’s performance of his contract delivery duties is not at issue.  The termination stemmed from Appellant’s interaction with Postal Service employees stationed at the post office in Exton, Pennsylvania that served as the origin and destination for his route.  The appeal is being decided on the written record, and under the Board’s Small Claims (Expedited) procedure.  39 C.F.R. §§955.12, 955.13.

FINDINGS OF FACT

            1.  On June 19, 2008, Appellant was awarded Contract No. HCR 193B0 at a rate of $42,000 per annum and with a term of August 1, 2008, through March 31, 2012.  Under the contract schedule, Appellant was to report to the Exton, Pennsylvania Post Office at 8:00 a.m. to sort his mail.  He was to leave the post office at 9:45 a.m. and travel to a single location, Exton Crossing, where he was to deliver mail until approximately 12:30 p.m., and then return to the Exton Post Office.  (Appeal File Tab (AF) 17).

            2.  The contract contained the following provisions, relevant to this dispute:

            a.  Clause C.3.1.7 (Termination for Default) of the General Clauses provided that the Postal Service could terminate the contract “for default by the supplier, or if the supplier fails to provide the Postal Service, upon request, with adequate assurances of future performance.”  The provision further provided:  “In the event of termination for default, the … supplier will be liable to the Postal Service for any and all rights and remedies provided by law.”  (AF 17, p. 101).

            b.  Clause C.3.1.14 incorporated by reference clause B-69, Events of Default, which provided that “failure to perform service in accordance with the terms of the contract” and “failure to follow instructions of the contracting officer” constituted events of default under the Termination for Default clause.  (AF 17, p. 102).

            c.  Clause C.3.1.7 also provided that if it were determined that the Postal Service improperly terminated the contract for default, such termination would be deemed a termination for convenience.  Under clauses C.3.2.4 and C.3.3, in the case of a convenience termination during the first year of contract performance, the contractor would be entitled to recover liquidated damages in the amount of one-third of the annual rate.  (AF 17, pp. 101, 103, 104).

            d.  Clause B.3.h provided that “The supplier shall deny access to the mail to any employees or personnel when required to do so by the contracting officer.”  (AF 17, p. 78).

            3.  Two Postal Service employees at the Exton Post Office had some responsibility for aiding Respondent’s contracting personnel in administering Appellant’s contract on a day-to-day basis - the Supervisor for Customer Service (Supervisor) and the Officer in Charge (OIC).  There were also other mail delivery contractors and Postal Service employees (carriers, clerks, and administrative personnel) at the Exton Post Office during the time of Appellant’s contract service.  Appellant engaged in frequent conversations with some of the Postal Service employees, to the extent that the OIC felt it necessary to ask him on at least a weekly basis to stop talking to the carriers while they were working, because the OIC wanted to limit time-wasting by those hourly employees.  (Wiggins Declaration (decl.); Williams decl.).

            4.  For some time prior to September 23, 2008, Appellant had attempted to engage one of the female carriers, whose work station faced his, in discussions about politics, religion, and other sensitive topics, including her own personal life and the personal lives and sexual preferences of some of the other carriers.  The carrier attempted to discourage Appellant from engaging in such conversations by telling him he was out of line and asking him to stop bringing up those topics.  When Appellant failed to stop, the carrier arranged to have a barrier constructed between her work station and Appellant’s, so that they no longer could see each other.  On September 23, 2008, when Appellant still persisted in discussing those topics, the carrier became agitated, and she and Appellant engaged in a loud argument on the post office loading dock.  During the argument, Appellant used abusive language and profanity, and the carrier referred to him as a “scab.”  As a result, the Supervisor issued Appellant a Form 5500 - “Contract Route Irregularity Report.”  The Supervisor counseled the carrier regarding her calling Appellant a “scab” and the name-calling stopped.  Thereafter, however, in his discussions with others at the post office, Appellant referred to the carrier by a profane variation on her name.  (Crabb decl.; Cosgrove decl.; Wiggins decl.; Williams decl.; Young decl.; AF 12, p. 54).

            5.  On September 25, 2008, the OIC approached Appellant regarding a customer’s complaint that he (the customer) had not received a package although the package had been recorded as delivered.  Appellant admitted that the package was still at his work station and told the OIC that he would not deliver the package because he believed that the parcel locker at the delivery site was defective.  During the discussion, Appellant became agitated and began to shout at the OIC.  After being advised to calm down, Appellant continued to shout at the OIC and “mock” him.  The OIC directed Appellant to continue processing his mail and then began to return to his office.  Appellant followed the OIC toward his office and when asked why he was doing so, replied in an abusive manner.  The OIC then advised Appellant that he was either to go back to processing his mail or he would be asked to leave the building.  Appellant then turned around and returned to his station.  The OIC issued Appellant a Form 5500, stating as his description of the irregularity - “unprofessional behavior, loud and disrespectful, unwilling to listen and follow instructions.”  (Williams decl.; AF 12, p. 55).

            6.  On September 26 and October 11, 2008, Appellant left his delivery vehicle in the Supervisor’s assigned parking spot, with mail on board and with the engine running.  The Supervisor admonished Appellant on both occasions, advising him that the parking spot he was using was assigned to the Supervisor, and that leaving the vehicle running and unattended also constituted a safety hazard to personnel walking through the parking lot and to children in a day care center next door, which was separated from the post office parking lot only by a chain link fence.  After the second incident, the OIC issued a Form 5500 to Appellant for his failure to follow instructions.  (Wiggins decl.; Williams decl.; AF 18, p. 157).

            7.  On December 8, 2008, Appellant left his vehicle, for a third straight day, in a location that blocked access to the Supervisor’s parking spot.  The Supervisor found Appellant in the post office and began to ask him why he had blocked the spot.  Before the Supervisor could complete his question, Appellant began shouting at him and approached him in an aggressive manner.  Ultimately, the Supervisor asked Appellant whether he would like to leave the building, at which time Appellant walked off the workroom floor.  (Wiggins decl.; McGowan decl.; AF 16).

            8.  Later on December 8, 2008, after he returned from making his deliveries, Appellant interrupted a work-related conversation between two window clerks who were in the process of closing out their stations at the end of the day.  One of the clerks asked Appellant to step away, because the clerk found Appellant’s conversation distracting while he was trying to count money.  Appellant ignored the clerk’s request and, when the clerk repeated his request, began to shout at him.  Appellant told the clerk to shut up and go home.  The clerk then became angry and responded to Appellant in kind.  The shouting continued until the Supervisor stepped in and put a stop to the argument.  (Trevidi decl.; Wiggins decl.; AF 16).

            9.  On December 10, 2008, the Supervisor contacted the contracting officer to report the two incidents that had occurred on December 8 (Findings 7, 8).  After receiving the reports, the contracting officer contacted Appellant by telephone and informed him that he was temporarily suspended from service because of his actions.  At about the same time, the contracting officer reviewed the Forms 5500 that had been issued following the September 23 and 25 incidents (Findings 4, 5).  (Wiggins decl.; Williams decl.; AF 16).

            10.  By letter to Appellant dated December 11, 2008,  the contracting officer issued a “Show Cause Notice,” directing Appellant to provide any explanations or excuses as to why his contract should not be terminated for default because of the incidents on September 23, September 25, and December 8, 2008 (Harris decl.; AF 15).  At that point, Respondent solicited temporary replacement service for the route (Childress decl.).

            11.  Appellant responded to the contracting officer in a letter dated December 18, 2008.  Appellant claimed that he was being harassed by personnel at the Exton Post Office because he was gay.  He claimed that the incidents referenced in the contracting officer’s letter had been initiated by employees at the post office.  He also recounted other incidents in which he claimed he had been subjected to ridicule and harassment.  Appellant argued to the contracting officer that the suspension was unfair and asked that he be restored to duty with full back pay.  (AF 14).

            12.  On January 5, 2009, the contracting officer contacted the Postal Service office charged with investigating claims of harassment and other forms of mistreatment at Postal Service facilities.  He forwarded a copy of Appellant’s December 18 letter to that office and asked that Appellant’s claims be investigated.  Thereafter, a Workplace Environment Analyst was assigned to conduct the investigation.  While spending two days at the Exton Post Office, the analyst examined documents and interviewed and received sworn, written statements from eight employees regarding the specific allegations in Appellant’s letter.  In a report dated January 27, 2009, and received by the contracting officer on January 29, the analyst concluded that “there appears to be no substantive foundation to the charges/allegations levied [by Appellant].”  (Harris decl.; Fritz decl.; AF 12).

            13.  The contracting officer concluded that he had a sufficient basis for terminating the contract.  However, because he believed that it was Appellant’s behavior and not his delivery performance that was the problem, the contracting officer elected to give Appellant an opportunity to perform the contract using a hired driver, instead of terminating the contract.  Accordingly, by letter dated February 3, 2009, the contracting officer informed Appellant that he was barred from access to the mails and to Postal Service facilities, but that he was required to resume service by February 17, 2009, using a properly screened, hired driver.  The letter also warned Appellant that his failure to resume service by that date might result in termination of the contract.  (Harris decl.; AF 11).

            14.  On February 13, 2009, the contracting officer received a letter from counsel for Appellant.  In relevant part, the letter advised that Appellant did not have the funds to hire a driver.  (Harris decl.; AF 9).

            15.  By letter dated March 4, 2009, the contracting officer issued a second “Show Cause Notice,” asking Appellant to provide, by March 13, any explanations or excuses for his failure to resume service by February 17, 2009.  The record contains no response by Appellant to this Show Cause Notice.  Appellant did not resume service under the contract at any time after December 10, 2008.  (Harris decl.; Wiggins decl.; AF 7).

            16.  By letter dated March 19, 2009, the contracting officer issued a final decision terminating Appellant’s contract for default.  The letter apparently reached the destination post office on March 20, 2009, and a notice was left for Appellant.  The letter was actually delivered to Appellant on April 22.  (Harris decl.; AF 6, 4, 3 (pp. 9, 10)).

            17.  On or about March 19, 2009, Respondent’s Contract Transportation Specialist issued an emergency solicitation, contacted various potential suppliers, and provided them with the route information.  The contracting officer awarded a contract to an emergency supplier at an annual rate of $44,000.  (Childress decl.; Harris decl.).

            18.  In a final decision dated April 30, 2009, the contracting officer assessed Appellant $1289.87 in excess reprocurement costs, which Respondent incurred.  The contracting officer calculated a “per-day” rate by dividing the difference in contract annual rates ($2000) by 365 to arrive at $5.48.  The contracting officer assessed the daily rate for 103 days, considerably fewer than the number of days still left in the contract performance period.  In addition, the contracting officer sought to recover the cost Respondent had incurred for three hours of secretarial time and 10.3 hours of time of the transportation specialist to issue the solicitation, evaluate proposals, and award the contract.  (Harris decl.; AF 2).

            19.  By letter dated July 31, 2009, and received by  the contracting officer on August 6, counsel for Appellant stated that Appellant was appealing the decision terminating the contract and assessing damages (Harris decl.; AF 1).

DECISION

            Respondent, which has the burden of proof in this default termination case,[1] has demonstrated that Appellant failed to perform his contract after February 17, 2009, which was the date set by the contracting office for Appellant to resume service (Finding 13).  This is sufficient to establish a prima facie case sustaining the default termination.  Michelle R. P’Pool, PSBCA No. 5294, 08-1 BCA ¶ 33,824.  Therefore, the burden shifts to Appellant to present evidence of excusable causes, Charli Selsa Schiver d/b/a NGX-Schiver, PSBCA No. 4545, 02-2 BCA ¶ 31,937; Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419, at 131,429, or to show that the termination was an abuse of the contracting officer's discretion, Jesse A. Farmer, PSBCA No. 2702, 91-3 BCA ¶ 24,181, at 120,941.

            In this instance, of course, the most obvious, potentially excusable cause is the fact that the contracting officer barred Appellant from the Exton Post Office and demanded that he resume service using a hired, properly screened driver.  The contracting officer had the authority under the contract to bar Appellant from access to the mail (Finding 2.d).  However, the contracting officer was required to exercise his discretion under this provision in a reasonable manner.  E.g., Michelle R. P’Pool, PSBCA No. 5294, 08-1 BCA ¶ 33,824; Samson J. Hypolite, PSBCA No. 5266, 06-2 BCA ¶ 33,337, recon. den., 07-1 BCA ¶ 33,468.

            Appellant argues that from the beginning of his contract performance he was mistreated because of his effeminate mannerisms and because he is gay.  Appellant argues that the incidents that occurred in September and December (Findings 4-8) were initiated by, or were the fault of, Postal Service employees.  He argues that employees frequently yelled at him and used openly gay slurs addressed to him, but were not disciplined therefor by Postal Service management.  He contends that he was unfairly terminated because of minor events, unrelated to his delivery of the mail, that were the direct result of his mistreatment and his complaints about mistreatment.

            Appellant’s arguments, however, are not supported by a preponderance of the record evidence, which is the evidentiary standard we apply.  E.g., Charles West, PSBCA No. 3655, 96-1 BCA ¶ 28,211, at 140,807, and cases cited therein.  Appellant failed to offer any supporting written testimony in the form of sworn affidavits or declarations by him or any other witnesses that would establish the facts as he has alleged them to be.  Indeed, his only evidence on this point was his December 18, 2009 letter to the contracting officer (Finding 11).  On the other hand, Respondent offered declarations under penalty of perjury of numerous of its employees at the Exton Post Office denying that Appellant had been mistreated, denying that the September and December incidents had been caused by Respondent’s employees, and describing in detail Appellant’s conduct that they found to be offensive and disturbing.

            Considering the record before the Board, we cannot find that the contracting officer acted arbitrarily or abused his discretion in deciding to suspend Appellant’s performance in December or to bar him from access to the facility and to the mail in February (Findings 9, 13).  Appellant’s suspension was ordered after the Supervisor reported the December 8 confrontations, including Appellant’s aggressive behavior.  It was not unreasonable for the contracting officer to have taken this action, while awaiting Appellant’s reply to the show-cause notice.  E.g., Andrew M. Johnson, PSBCA Nos. 5175, 5210, 5242, 07-1 BCA ¶ 33,464, recon. den., 07-1 BCA ¶ 33,582.

            Once Appellant alleged in his reply that he had been harassed by personnel at the Exton Post Office because of his sexual orientation, the contracting officer referred those allegations to the Postal Service office charged with investigating such claims.  The analyst who investigated Appellant’s allegations concluded, after interviewing and receiving sworn statements from employees, that there was no substantive foundation for the allegations. [2] 

            After reviewing the record before him, including the analyst’s report, the contracting officer, concluding that Appellant’s behavior was the cause of the problem at the post office, then formally barred Appellant from access to the mail and to Postal Service facilities, and gave Appellant approximately two weeks to find a substitute and resume service (Findings 12, 13).  When Appellant did not resume service, the contracting officer issued a second show-cause notice giving Appellant an opportunity to present excuses for not having done so (Finding 15).  Appellant neither provided a driver to operate the contract on his behalf nor requested any additional time in which to do so (Finding 15).

            On this record, Appellant has not met his burden of showing either that there were excusable causes for his failure to perform service under the contract or that the decision by the contracting officer to terminate the contract represented an abuse of his discretion.  Accordingly, we conclude that the termination for default was proper.

            With regard to Respondent’s assessment of excess reprocurement costs, apart from challenging the underlying default termination, Appellant has not challenged in any way either the propriety of the assessment or the contracting officer’s calculation of the amount of damages.  Respondent’s evidence is sufficient to explain the factual basis for assessing the excess costs it incurred and the calculation of those costs.  We conclude that Respondent has met its burden of showing entitlement to recover those costs.  Respondent may recover $1289.87 from Appellant.

            Accordingly, the appeal is denied.

David I. Brochstein
Administrative Judge
Vice Chairman

[1]  As an initial matter, Respondent argues that the Board may consider the propriety of the default termination only in the context of deciding Appellant’s timely appeal from the final decision assessing excess reprocurement costs.  Respondent argues that because Appellant did not appeal from the default termination within 90 days from receipt of the final decision (see Findings 16, 19), the Board may not allow Appellant any affirmative monetary recovery (see Finding 2.c), even if it finds the termination to have been improper.  Because we decide that the termination for default was proper, we need not address this argument.

[2] We note that among documents placed in the record by Respondent was a declaration made for the analyst (Finding 12) by one of the Postal Service carriers, stating that she had heard other carriers making jokes and comments about Appellant because of his sexual orientation, but questioning whether Appellant had heard them.  Further, in a later declaration the carrier stated that she did not hear any direct verbal exchanges between Appellant and the carriers or Postal Service management.  (Cosgrove declarations dated January 13, 2009 (AF 12), and February 23, 2010).  Thus, the carrier’s declarations do not provide a basis for concluding that Appellant was provoked in connection with the September and December confrontations (Findings 4-8) and that his conduct was, for that reason, excused.