PSBCA Nos. 6362, 6400, 6409, 6410, 6416


February 9, 2015

TAMBA MANYA MOMORIE v. UNITED STATES POSTAL SERVICE

PSBCA Nos. 6362, 6400, 6409, 6410, 6416

APPEARANCE FOR APPELLANT:
Michael L. Harvey, Esq.
Michael L. Harvey, P.A.

APPEARANCE FOR RESPONDENT:
Melissa M. Mortimer, Esq.
United States Postal Service Law Department 

OPINION OF THE BOARD

Appellant, Tamba Manya Momorie, filed timely appeals challenging the default termination of his mail delivery contract and seeking related damages. He also challenged and sought damages for the contracting officer’s decision not to renew three other contracts. The Board conducted a three-day hearing in Jacksonville, Florida. We rule in favor of the Postal Service.1

FINDINGS OF FACT

  1. Respondent, United States Postal Service, entered into four contracts with Mr. Momorie for mail transportation and delivery services in Florida.2 Contract No. HCR 324D5 (“Youngstown Contract”) began September 11, 2010, and was scheduled to expire March 31, 2016. Contract Nos. HCR 320DG and HCR 326AG began July 1, 2007, and were scheduled to expire March 31, 2011. Contract No. HCR 349LO began October 17, 2009 and was scheduled to expire June 30, 2011. (AF 6362, Tab 1 at 1, Tab 10; AF 6409, Tab 1 at 6, Tab 2 at 88; AF 6410, Tab 1 at 2).3
  2. Each contract included Clause B-78, Renewal, which provided: “This contract may be renewed by mutual agreement of the parties.” (Stip. 31; AF 6362, Tab 1 at 47; AF 6409, Tab 1 at 42, Tab 2 at 131; AF 6410, Tab 1 at 19).
  3. 3. On June 2, 2010, Mr. Momorie emailed a Postal Service contract specialist complaining that he did not receive certain contract awards. The email stated, in part;
                I am really frustrated with the way you have treated me this year. You deliberately denied me 12 contracts which were within the
                range of my bid. . . . I get frustrated every day when I think about what you continue to do to me. I don’t think you should treat me
                like a second class citizen. You should treat me fairly and with some respect. But throughout this year, you have not treated me
                with any kind of respect. . . . This is not fair and I hold that strongly against you, although I bear you no grudge. . . . I am sure that
                you are not going to hate me to the point of letting me be homeless.
    (R. Exh. 7).
  4. The contract specialist felt uncomfortable and intimidated by what she considered demeaning and unprofessional behavior by Mr. Momorie. The contract specialist referred Mr. Momorie’s email to the contracting officer, who previously had very little experience working with Mr. Momorie. On June 3, 2010, the contracting officer emailed Mr. Momorie stating that he makes contract award decisions, not the contract specialist. The contracting officer also advised Mr. Momorie that he found the June 2 email to be “disturbing and non-constructive,” and that it was not an appropriate way to voice his concerns. (R. Exh. 7; Tr. 1 at 235-36, 239, 263-65, 271; Tr. 2 at 9-11).

    Youngstown Contract
  5. On August 3, 2010, the same contracting officer awarded Mr. Momorie the Youngstown Contract for mail transportation and delivery service, which included “[d]eliver[ing] all mail matter received for that purpose from a post office into the appropriate customer mail boxes” to 474 customer mail boxes along a 36 mile route in Youngstown, Florida. (Stips. 1-2; AF 6362, Tab 1 at 1, 11, 16; Tr. 1 at 20; Tr. 2 at 13-14).
  6. Clause C.3.1.6 of the Youngstown Contract, Termination for Default, provided that “[t]he Postal Service may terminate this contract, or any part thereof, for default by the supplier, or if the supplier fails to provide the Postal Service, upon request, with adequate assurances of future performance.” Clause C.3.8(a) allowed termination under the “Termination for Default” clause for “[Appellant’s] failure to perform service according to the terms of the contract.” (AF 6362, Tab 1 at 39, 45).
  7. The Youngstown Contract also provided “[t]he Postal Service has a Zero Tolerance Policy regarding workplace violence. Suppliers and their employees must conduct themselves in a professional and businesslike manner. . . .” (Stip. 18; AF 6362, Tab 1 at 22).
  8. The Youngstown Contract designated the Postmaster of the Youngstown Post Office as the administrative official (AO) responsible to supervise and administer the contract. The contract required the AO to provide three hours of route training per day for two days. Such training included demonstrating the route’s line of travel for deliveries to customers and instructing how to organize mail in the order that it will be delivered along the route (known as casing). (Stip. 6; AF 6362, Tab 1 at 21; Tr. 1 at 23, 26-27, 34-35; Tr. 2 at 189-91, 252-53).
  9. On August 13, 2010, the AO called Mr. Momorie to welcome him as the new contractor, and arranged for Mr. Momorie to visit on August 16. On August 16, they met and conversed at the post office’s retail counter. However, the AO did not permit Mr. Momorie to enter the workroom area because no other postal employees were present, and the postmaster needed to remain by the retail counter for customer service. (A. Exh. 13 at 1; Tr. 1 at 109-10, 122-23, 125-26).
  10. During the August 16 meeting, Mr. Momorie advised the AO that he planned to hire an employee to deliver the mail. The AO told Mr. Momorie that he might find it difficult to hire a suitable employee from the surrounding area because prior contractors had difficulty finding employees who could pass the required background check. (A. Exh. 13; Tr. 1 at 22, 111-12, 120-26; Tr. 2 at 163-67; Tr. 3 at 53-57).
  11. Mr. Momorie immediately hired an employee. The next day, August 17, 2010, Mr. Momorie and his employee4 were shown casing, loading, and delivering the mail along the same route for which Mr. Momorie would become responsible. Mr. Momorie and his employee spent approximately three hours observing casing and three hours learning the line of travel by following the previous contractor along the route. (Stip. 20; Tr. 1 at 128, 177; Tr. 2 at 174-76, 263).
  12. Since Mr. Momorie previously performed several mail delivery contracts and was familiar with casing mail, he believed that the only training he required was familiarization with the line of travel. Mr. Momorie was shown the line of travel prior to the start of contract performance. (Stip. 6; AF 6362, Tab 3 at 2; Tr. 1 at 32-33; Tr. 2 at 25, 187, 189-90).
  13. Before contract performance began, Mr. Momorie terminated his employee who participated in the August 17 training because the employee was unable to pass a criminal background check (Tr. 1 at 177-78, 193; Tr. 2 at 169-71, 263-64).
  14. On August 26, 2010, Mr. Momorie brought a replacement employee to the Youngstown Post Office for training (A. Exh. 13 at 3; Tr. 1 at 136-37; Tr. 2 at 180-83). This employee and another newly-hired employee worked for Mr. Momorie on the Youngstown Contract during the first week of performance, which began on September 11, 2010 (Tr. 1 at 24-25; Tr. 2 at 179).
  15. During that first week of performance, the AO and a postal clerk provided training to Mr. Momorie’s two new employees (Tr. 1 at 25-27, 195-96; Tr. 2 at 25-26, 189-90).
  16. During the first three days of the contract, the AO observed Mr. Momorie’s two employees’ performance. He did so to ensure that they understood the line of travel, the order of mail delivery, and used proper delivery techniques. The AO then provided feedback to the employees. (Tr. 1 at 21-23, 25-27, 134). Overall, the Postal Service provided substantially more than the contractually-specified amount of training (Tr. 1 at 35-36, 134; Tr. 2 at 19).
  17. Both of Mr. Momorie’s employees then quit after the first week of performance due to salary and other disputes with Mr. Momorie (Tr. 1 at 29-31, 200; Tr. 2 at 199, 256-58, 267).5
  18. Mr. Momorie then hired a fourth employee to deliver mail under the contract. However, Mr. Momorie fired that fourth employee shortly thereafter for poor job performance, and hired a fifth employee who worked on the contract.6   (Tr. 1 at 264-66; Tr. 2 at 264-67).
  19. PS Form 5500, Contract Irregularity Report (Irregularity Report), is commonly used by administrative officials to document performance deficiencies. The completed form explains the performance deficiency and allows for a contractor response. All Irregularity Reports issued during the performance of the Youngstown contract were issued by the AO. (R. Exh. 12; Tr. 1 at 38-41).
  20. The AO typically mailed Irregularity Reports for this contract to Mr. Momorie’s home address, although he occasionally handed them to Mr. Momorie in the Youngstown Post Office. The contracting officer preferred that Irregularity Reports be mailed to contractors with delivery confirmation. (Tr. 1 at 146-48; Tr. 2 at 16-17).
  21. During the first five days of the contract, the AO was aware of performance problems but did not issue Irregularity Reports. Rather, the AO provided a grace period designed to allow Mr. Momorie and his employees the opportunity to correct mistakes. During the grace period, the AO orally informed Mr. Momorie and his employees about performance problems. (R. Exh. 12 at 147; Tr. 1 at 42).
  22. From September 16 through September 23, 2010 (the week immediately after the grace period), the AO issued 19 Irregularity Reports. Sixteen of those Irregularity Reports documented mail misdelivery, that is, mail delivered to an address other than that depicted on the mail piece. Most often, customers who receive misdelivered mail re-deliver the mail to the address listed on the mail piece without informing the Postal Service. In such circumstances, unless the customer also notified the Postal Service, the AO would not know about the misdelivered mail, and an Irregularity Report would not be issued. (R. Exh. 12 at 147-74; AF 6362, Tab 9; Tr. 1 at 43-44).
  23. The Postal Service received daily complaints by telephone or in-person about misdelivered mail from customers on Mr. Momorie’s route. On several occasions when complaints were received in-person, customers provided the misdelivered mail for re-delivery. The AO issued Irregularity Reports to document these misdeliveries, and attached copies of the misdelivered mail pieces where available. (R. Exh. 12; Tr. 1 at 43-44, 201).
  24. The postal clerk regularly searched delivery vehicles at the Youngstown Post Office after routes were completed to determine whether undelivered mail remained in the vehicles.7 On September 20, 2010, the postal clerk searched Mr. Momorie’s delivery vehicle and discovered a handful of undelivered mail under a seat. (A. Exh. 13 at 4; Tr. 1 at 99-102, 142-43, 203-09).
  25. Mr. Momorie left a long voice mail message on the postal clerk’s personal telephone that evening complaining that she had singled out his vehicle to be searched.8 The clerk interpreted the message as accusatory and condescending. (AF 6362, Tab 7; Tr. 1 at 208-09).
  26. The following morning, the postal clerk told Mr. Momorie that she searched vehicles regularly and did not single out his vehicle. A loud argument ensued which resulted in the AO interceding to separate the clerk and Mr. Momorie. Later that morning, the AO disciplined the clerk by conducting an official discussion for her behavior during her argument with Mr. Momorie. The AO also issued Mr. Momorie an Irregularity Report for raising his voice to the AO when he attempted to discuss the incident. (R. Exh. 12 at 157-58; Tr. 1 at 102-05, 209-11).
  27. Between September 24 and September 30, 2010, the AO issued Mr. Momorie nine additional Irregularity Reports documenting misdelivered mail. Mr. Momorie disputed the accuracy of the Irregularity Reports and alleged that they were the result of sabotage by the AO. (R. Exh. 12 at 174-88).
  28. On September 30, 2010, the AO conducted a formal performance conference with Mr. Momorie to discuss mail misdeliveries and other performance problems reflected in Irregularity Reports. The AO advised Mr. Momorie to take corrective action necessary to provide satisfactory service and warned him that if performance did not improve, he intended to refer the matter to the contracting officer for further action, including terminating the contract for default. (Stip. 21; AF 6362, Tabs 4-5; Tr. 1 at 94-95).
  29. The AO issued a total of 54 Irregularity Reports to Mr. Momorie during the six weeks of contract performance following the grace period, 43 of which documented misdelivered mail (R. Exhs. 11, 12 at 189-239; Tr. 1 at 71-72). The AO based all Irregularity Reports on customer complaints or on his personal observations (Tr. 1 at 98). However, the AO did not issue Irregularity Reports for every service problem he knew about and was lenient in issuing such reports unrelated to misdeliveries (Tr. 2 at 134).
  30. Many of the Irregularity Reports included instances of multiple delivery errors (see R. Exhs. 11, 12 at 151, 152, 156, 174 (customer received mail for five different addresses), 175, 183, 210 (customer received 19 mail pieces for a different address), 212 (customer complained about consistent misdeliveries), 216 (customer complained about misdeliveries going on for a month), 219, 232 (customer received eight mail pieces for different addresses), 237 (customer received six mail pieces for different addresses), 238).
  31. In the space allotted for his responses in the Irregularity Reports, Mr. Momorie flatly denied that the vast majority of misdeliveries occurred. Rather, his responses accused the AO of falsely creating the Irregularity Reports in the absence of actual customer complaints. He also accused the AO of orchestrating misdeliveries by physically removing mail from customer mailboxes and placing it in mailboxes at incorrect addresses. Mr. Momorie alleged, sometimes, that the postmaster, one of his employees, or a “mysterious character” hid in the bushes to do so. Mr. Momorie routinely referred to the reported mail misdeliveries as resulting from “sabotage,” or a “witch-hunt” based on a racist conspiracy against him. Mr. Momorie imbued many of his statements in the Irregularity Reports with harsh racial commentary. (R. Exh. 12).
  32. The AO was frustrated that Mr. Momorie would not accept responsibility for the misdeliveries and customer complaints, or address their correction. On October 14, 2010, the AO recommended that the contracting officer terminate the Youngstown Contract for default, and stated: “I cannot continue to subject the customers on the route to this kind of shoddy, sloppy customer service.” (AF 6362, Tab 6; Tr. 1 at 13-14, 171-72).
  33. On October 20, 2010, the contracting officer issued Mr. Momorie a cure notice, notifying him that unless his poor performance was cured within five business days, the Postal Service might terminate the contract for default (AF 6362, Tab 8).
  34. On October 22 and October 23, 2010, Mr. Momorie responded to the contracting officer’s cure notice. Rather than explain how he intended to cure his performance problems, Mr. Momorie claimed to be doing an “excellent” and “superb” job and accused the AO of being a racist who created untrue Irregularity Reports. Mr. Momorie asked the contracting officer to send “a team of undercover investigators” to gather data. Mr. Momorie’s responses to the cure notice were rife with racially-charged statements, such as comparing the AO’s conduct to lynchings of African Americans during the Jim Crow era. (AF 6362, Tabs 9, 10).
  35. On October 28, 2010, Mr. Momorie emailed the contracting officer stating that it would be unfair for the Youngstown Contract to be terminated because the contracting officer did not conduct the investigation he had requested. The email stated “I have enough evidence to show that [the AO] has been treating me unfairly and has been lying on the [Irregularity Reports] without any conscience,” but did not provide the referenced evidence. (AF 6362, Tab 11).
  36. The contracting officer and a contract specialist spoke with Mr. Momorie often about these allegations. Both the contracting officer and a contract specialist separately discussed the allegations with the AO, and the contracting officer reviewed the documents in the file. The contracting officer decided that an additional investigation was not necessary, and on October 29, 2010, issued a final decision terminating the Youngstown Contract for default due to unsatisfactory performance. The final decision explained that since the October 20, 2010 cure notice, service had not improved, as evidenced by deficiencies reflected in ten additional Irregularity Reports. Seven of those Irregularity Reports documented misdelivered mail. (Stip. 22; AF 6362, Tab 12; Tr. 1 at 247-48, 272; Tr. 2 at 21, 224, 26-27).
  37. On November 20, 2010, Mr. Momorie emailed the contracting officer, referring to him as his “enemy,” and suggesting that the contracting officer was “corrupt.” (R. Exh. 15 at 244).
  38. On November 30, 2010, Mr. Momorie sent a letter to the contracting officer stating that he was appealing the final decision, which the Board docketed as PSBCA No. 6362 (A. Exh. 13 at 1-10).
  39. On April 15, 2011, Mr. Momorie sent a letter to the contracting officer that included a certified claim seeking $182,724.13 for damages due to the default termination (A. Exh. 13 at 11-19).
  40. On May 11, 2011, the contracting officer issued a final decision denying the claim (PSBCA No. 6400 file).
  41. On June 8, 2011, Mr. Momorie sent a letter to the contracting officer stating that he was appealing that final decision, which the Board docketed as PSBCA No. 6400 (PSBCA No. 6400 file).

    Post-termination activities
  42. The AO received a letter addressed to “Postmaster Brian,” (his first name), postmarked the day after the termination for default of the Youngstown Contract, which bore a return address from “Joe White” at a fictitious address. The unsigned letter stated in its entirety:

    WARMING [sic] TO POSTMASTER OF YOUNGSTOWN POST OFFICE.
    1. Your [sic] surely have done terrible wrong to a person of color.
    2. This person is extremely angry at you
    3. If you refuse to apologize to this person, you will have several misfortunes come your way in the next twelve months:
                i.   You will have a serious stroke that will make you perish
                ii.   You could have a heart attack that could lead to death
                iii.  You could find yourself in jail for lying or falsifying documents about people
    4. You need to repent and apologize to this person of color
    5. Furthermore, your family could perish if you do not come clean and tell the truth about falsifying documents about people of color. Coming out clean will save you and your family from perishing.
    6. Your desire to take a job from someone because of the color of their skin could expose you to lying and committing perjury which could put you in jail for years. Now is the time to confess the truth or you will be in a serious predicament.
    7. You will see the Press come to Youngstown to conduct an investigation about your racist views on people of color. If you do not make yourself available to the Press, you will be exposed nationally and your name will be on national Cable such as CNN.
    (AF 6362, Tab 14 at 138-39 (emphasis in original); Tr. 1 at 114-15; Tr. 3 at 19).
  43. The AO interpreted the letter as a direct threat of physical harm to himself and his family (Tr. 1 at 116).
  44. The AO believed that Mr. Momorie sent the letter. He reached this conclusion because the letter was postmarked in Jacksonville, Florida where Mr. Momorie lives, and was written in a manner similar to other correspondence he had received from Mr. Momorie. Mr. Momorie also was the only person who had accused the AO of racial bias. (Tr. 1 at 106, 114-18).
  45. The AO was very upset by the letter. He provided a copy to the contracting officer, who also considered the letter a threat. The contracting officer provided the letter to the Postal Inspection Service with a request that a threat investigation be conducted. The contracting officer concluded that Mr. Momorie had written the letter because he believed the language and tone were similar to Mr. Momorie’s other communications. (Tr. 1 at 116; Tr. 2 at 34-35, 96).
  46. Shortly thereafter, two inspectors from the Postal Inspection Service visited Mr. Momorie and his wife, Linda Fuster, at their Jacksonville home. After identifying themselves as law enforcement officers, the Postal Inspectors showed Mr. Momorie and Ms. Fuster the letter received by the AO and asked whether they knew anything about it. Mr. Momorie denied all knowledge and Ms. Fuster laughed at the inspectors’ questions but otherwise remained silent. (Tr. 2 at 35, 230-35, 323; Tr. 3 at 3-4, 21-23).
  47. One of the inspectors later told the contracting officer that he believed that Mr. Momorie had written the letter (Tr. 2 at 98).9   On December 10, 2010, the contracting officer temporarily denied Mr. Momorie access to the mail and to Postal Service facilities because of threats made to a postal employee (AF 6362, Tab 14 at 140).
  48. Later on December 10, 2010, Ms. Fuster, who is also a Postal Service contractor, emailed the contracting officer. Ms. Fuster referred to herself as Mr. Momorie’s “partner” and referred to Mr. Momorie as her “friend and brother,” but she did not reveal their marital status. Ms. Fuster’s email stated that she had sent the unsigned letter. While Ms. Fuster apologized “if [the AO] took it as a threat,” as revealed in her testimony, Ms. Fuster still did “wish him [the AO] harm.” Later that same evening, Mr. Momorie separately emailed the contracting officer and others where he “emphasize[d] that the writer of the correspondence is not my business partner. She is a partner but not a business partner. . . . We only share the same building.” He also did not identify their marital status. (AF 6362, Tab 14 at 141; Tr. 3 at 10-11, 26, 29). The contracting officer later learned that Mr. Momorie and Ms. Fuster were married, and he believed that both had been deceitful (R. Exh. 8 at 102; Tr. 2 at 125, 139).
  49. On January 31, 2011, a different contracting officer sent a letter to Mr. Momorie asking whether he was interested in renewing Contract No. HCR 326AG prior to its March 31, 2011 expiration. The letter advised that “[w]e will consider additional strategies to come to a mutually agreeable price (e.g., renewing with a shorter term (one year) as opposed to the more standard 2-4 years; and incorporating a ‘60-day out clause’ in all contracts.)” (AF 6409, Tab 6 at 245).
  50. On March 29, 2011, the primary contracting officer sent a letter to Mr. Momorie stating that he would agree to renew Contract No. HCR 326AG and 320DG, but only for six months, while he awaited an investigation report from the Postal Inspection Service. Although the contracting officer requested a report from the Postal Inspection Service several times, he did not receive one. (AF 6409, Tab 5; Tr. 2 at 35, 98).
  51. In a modification signed by Mr. Momorie on March 30, 2011 and by the contracting officer on March 31, the parties extended Contract No. HCR 320DG’s expiration date from March 31 to October 30, 2011 (Stip. 24; AF 6409, Tab 1 at 6).
  52. In a modification signed by Mr. Momorie on April 7, 2011 and by the contracting officer on April 12, the parties extended Contract No. HCR 326AG’s expiration date from March 31 to September 30, 2011 (Stip. 28; AF 6409, Tab 2 at 88).
  53. Contract No. HCR 349LO expired as scheduled on June 30, 2011. On August 3, 2011 however, in order to pay Mr. Momorie for services he provided after contract expiration, the Postal Service unilaterally extended the contract until October 1, 2011. (Stips. 35-37; AF 6410, Tabs 2-4, 6).
  54. On August 4, 2011, Mr. Momorie sent a letter to the contracting officer with a copy to the Board, identified as an appeal against the contracting officer’s decision not to renew Contract No. HCR 349LO for a two or three-year term. The Board docketed the letter as an appeal. (A. Exh. 6 at 6; PSBCA No. 6410 file).
  55. On August 6, 2011, Mr. Momorie sent another letter to the contracting officer with a copy to the Board, identified as an appeal against the contracting officer’s decision not to renew Contracts Nos. HCR 326AG and 320DG for terms longer than six months. The Board docketed the letter as an appeal. (PSBCA No. 6409 file).
  56. On September 23, 2011, the contracting officer sent Mr. Momorie a letter stating that Contract No. HCR 326AG was scheduled to expire on September 30, 2011. The letter stated that the “working relationship between you and the Postal Service at a local level and with this office has been ineffective. It is not a good business decision for the Postal Service to renew or continue this contract.” However, the contracting officer informed Mr. Momorie that in anticipation of him challenging the non-renewal to the “next higher contracting authority” as permitted by the contract, the expiration date would be extended for sixty days, pending Mr. Momorie’s signature of the extension documents, to permit continued performance until the expected administrative review was completed. (R. Exh. 13).
  57. Also on September 23, 2011, Mr. Momorie sent another letter to the contracting officer with a copy to the Board, identified as an appeal against the contracting officer’s decision not to renew Contract No. HCR 326AG for a four-year term. The Board docketed the letter as an appeal. (PSBCA No. 6416 file).
  58. On October 11, 2011, the contracting officer issued a letter to Mr. Momorie stating that Contract No. HCR 320DG was scheduled to expire on October 30, 2011. Again however, the contracting officer advised Mr. Momorie that in anticipation of him challenging the non-renewal, the expiration date would be extended for sixty days to permit continued performance through the resolution of such a challenge. (PSBCA No. 6409 file).
  59. On October 18, 2011, the higher-level contracting authority in the Postal Service denied the challenge from Mr. Momorie concerning non-renewal. The denial concluded:
                The renewal of a contract is predicated on a mutually beneficial relationship between the supplier and the Postal Service. During
                the period after the short term renewal, you appear to have sent a series of unprofessional correspondences directed at the CO.
                Your actions created an unsatisfactory working relationship, and, indeed, it appears that it has been exceedingly difficult for
                Postal Service staff to work with you. Therefore, the CO exercised the Postal Service’s right to opt not to renew the contract for
                a full term.
                I have reviewed the e-mail correspondence in the file and I find the CO’s decision to be well grounded.  The CO’s decision not to
                renew the subject contract [HCR 326AG] was reasonable and within the CO’s authority.  Therefore, your appeal is denied.
    (R. Exh. 14).10 A similar denial of Mr. Momorie’s administrative challenge about nonrenewal was issued for another contract involved in these appeals (A. Exh. 5 at 9).
  60. On November 16, 2011, Mr. Momorie sent an email to a Postal Service contract specialist, which stated:
                I attended the conference in Memphis last week and you happen[ed] to be the only one I could not see at the meeting. . . . My
                secondary purpose to go to Memphis was to meet with all those I have been talking to on the phone and know them in person,
                so that I would be able to identify them in the near future as those who brought a minority company to a standstill. Now
                that I have made friends in Memphis, I will continue to visit there occasionally. . . . I hope to see all of you some day.
    (R. Exh. 8 at 113). The contract specialist was very uncomfortable with this message, and considered it intimidating (R. Exh. 8 at 112; Tr. 1 at 259-61).
  61. On November 17, 2011, Mr. Momorie filed a claim certified in accordance with the Contract Disputes Act based on the contracting officer’s decision not to renew Contract Nos. HCR 320DG, 326AG and 349LO to four-year terms. The claim sought damages of $372,410.84. (PSBCA No. 6409 file).
  62. On November 24, 2011, Mr. Momorie sent an email to his counsel and to counsel for the Postal Service complaining that his business is “being shattered because some bigot/racist White male [referring to the AO] and black man [referring to the contracting officer] who is in need of job security have intentionally decided to shut my business down.” His references to the contracting officer continued: “[W]hen you have minorities who want to protect their jobs in high places, they would do anything to destroy another person, irrespective of their race or nationality. That is exactly what [the contracting officer] has done to me. . . . ” Mr. Momorie complained that he is “continuously being subjected to torture” because of delays he attributed to counsel, and suggested that Postal Service counsel was causing him “mental and psychological torture.” (R. Exh. 15 at 247; Tr. 2 at 319).
  63. On January 31, 2012, Mr. Momorie emailed the contracting officer, stating:
                You have condemned me before you could find any evidence on me. If I had the desire to retaliate against anyone who has done
                wrong to me, I was not going to be idle sitting down and writing a letter or message to them. I came from a country of warriors.
                But I have learned the ways of Dr. King and have become a disciple of his. Therefore, I am not going to use a language of threat
                to anyone. If I want to do something, I could do it directly and not to use any form of threat.
    (R. Exh. 8 at 114).11
  64. On February 24, 2012, Mr. Momorie sent an email to a different postmaster regarding a contract not involved in these cases, in which he stated:
                I don’t know why I am the only one to suffer from this [route] adjustment. I am convinced that this [E]xpress [M]ail issue has
                caused you and others to retaliate against me by taking away boxes from my route. One wisdom I have acquired over the
                years is that ‘If you live in a glass house, you should not throw stones.’ When you throw stones, you may end up breaking 
                down your own house. . . . So please I ask you again for the fo[u]rth time to be courteous towards me and my workers,
                because you don’t know where we will meet again after the Post Office.
    (R. Exh. 8 at 109 (emphasis in original)). The postmaster perceived this email as a threat, and requested a threat assessment (R. Exh. 8 at 108-09; Tr. 2 at 57-61).
  65. On May 11, 2012, the contracting officer denied Mr. Momorie access to the mails and postal facilities based on his continued threats. Mr. Momorie filed an administrative challenge, which a higher-level Postal Service contracting authority denied on June 18, 2012. (R. Exh. 8 at 102-07; R. Exh. 9).

DECISION

The Postal Service argues that Mr. Momorie’s poor contract performance was the only basis for the default termination of the Youngstown Contract, that it was under no legal or contractual obligation to renew the other contracts involved in these appeals, and that Mr. Momorie’s unprofessional approach to their business dealings justified allowing his contracts to expire. Mr. Momorie contends that racially-based conspiracies motivated the termination for default and non-renewal of his contracts. We rule in the Postal Service’s favor.

Termination for Default

The Postal Service bears the burden to prove that performance deficiencies fairly attributed to Mr. Momorie materially breached the Youngstown Contract. If the Postal Service meets that burden, to avoid termination, Mr. Momorie must demonstrate that the performance deficiencies were excusable, or that the contracting officer abused his discretion. See ABC Delivery Serv., L.L.C., PSBCA No. 6290, 11-1 BCA ¶ 34,747; Odessa R. Brown, PSBCA No. 5362, 11-1 BCA ¶ 34,724.

The record is replete with evidence of performance deficiencies. Numerous mail misdeliveries were documented, some including a copy of the mail marked by the customer as incorrectly delivered. (Findings 22-23, 27-32). Further, un-delivered mail was discovered under a seat in Mr. Momorie’s vehicle after an inspection at the end of the delivery day (Finding 24).

In response, Mr. Momorie argues that virtually all such evidence was fabricated, and resulted from racially-based conspiracies. Essentially, Mr. Momorie’s position is that mail misdeliveries and other performance problems reflected in the Irregularity Reports did not occur. Rather, he attributes those reports either to the AO simply making them up or someone (the AO, one of the AO’s employees, or a so-called mysterious character) removing properly delivered mail and re-depositing it into incorrect mailboxes (Finding 31). Regarding the undelivered mail found in Mr. Momorie’s vehicle under the car seat, Mr. Momorie believes that the mail was planted by conspirators. In support of these allegations, Mr. Momorie offers no proof other than his own testimony.

The competing versions of events cannot be reconciled, and we must believe one version or the other. Based on the consistency of the evidence, the plausibility of the competing versions, and our assessment of the credibility of the witnesses, we believe the Postal Service’s version, and credit as reliable the record it presented of Mr. Momorie’s performance deficiencies.

To establish bias or bad faith based on racial animus, Mr. Momorie must present actual proof not mere suspicions. See Charli Selsa Schiver d/b/a NGX-Schiver, PSBCA No. 4545, 02-2 BCA ¶ 31,937. The most likely reason for the frequent misdeliveries was that Mr. Momorie used five different employees during a short period of performance (Findings 11, 13 14, 17, 18), each time resulting in a new employee who would be more likely to make mistakes. In the end though, what matters is whether the misdeliveries occurred. While continually accusing the AO of racial conspiracies, Mr. Momorie did not explain the customer complaints about misdelivery, or show any efforts to improve his performance.

Credibility Assessments

Credibility assessments are critical to our conclusions. We do not discern racial animus in the AO’s behavior or testimony. To the contrary, several actions by the AO suggest a lack of animus against Mr. Momorie: allowing for a grace period during which he issued no Irregularity Reports, having been lenient in issuing Irregularity Reports unrelated to misdeliveries, and his parallel discipline of his postal clerk for the post office altercation (Findings 21, 26, 29). We find the AO’s testimony consistent, plausible, and believable. Mr. Momorie alleged that the postal clerk also made racially-based comments and would have been in a position to have observed inappropriate racial remarks or attitudes by the AO. We similarly find the postal clerk, who consistently denied all such allegations, credible.12

We also find the contracting officer credible. Although we discern that the contracting officer exhibited a personal dislike for Mr. Momorie during the hearing, we view his attitude as understandable given Mr. Momorie’s threatening behavior and antagonism. If anything, the contracting officer was patient with Mr. Momorie, particularly before the threatening letter received by the AO, which, we note, followed the default termination, and therefore could not have affected the default decision (Finding 42). For instance, the contracting officer awarded the Youngstown Contract shortly after he counseled Mr. Momorie about his inappropriate communications to a contract specialist (Findings 3-5). Even after the threatening letter, without a contractual obligation to do so, the contracting officer renewed two of Mr. Momorie’s other contracts each for two additional short terms pending an investigation and to allow Mr. Momorie opportunities for administrative review (Findings 50-52, 57-59).

In contrast, we find Mr. Momorie not credible. His testimony was inconsistent and his version of events implausible. Mr. Momorie was not forthcoming, and was evasive numerous times during the hearing. His courtroom demeanor appeared deceitful.13 In addition to not being credible, Mr. Momorie’s testimony about racially pejorative statements by the AO remained uncorroborated even though corroborative witness testimony should have been available if the events had occurred. Indeed, Mr. Momorie testified that many of the racially hostile actions occurred in the presence, variously, of his five employees who worked on the Youngstown Contract (Findings 11, 12, 13, 17, 18, fns. 4-6). However, while Mr. Momorie’s employees from other contracts testified as character witnesses, not a single employee who worked on the Youngstown Contract did.

Since we have decided that the Postal Service witnesses are credible and Mr. Momorie is not, and that the performance deficiencies reflected in the Irregularity Reports are accurate, we next analyze whether, taken together, they constitute a material breach of Mr. Momorie’s contract obligations sufficient to justify the default termination.

Mr. Momorie Materially Breached the Youngstown Contract

We agree with the Postal Service’s argument that Mr. Momorie’s numerous unexcused instances of misdelivered mail documented in Irregularity Reports violate the essential purpose of the contract (Findings 5, 29).14 See Gordon T. Smart, PSBCA No. 6123, 11-1 BCA ¶ 34,695. Mr. Momorie’s mail misdeliveries, which persisted even after repeatedly being advised of the details of the deficient performance and allowed a cure period, therefore materially breached the contract, justifying the termination of the Youngstown Contract for default. See id.; Christine Bell, PSBCA No. 5037, 04-2 BCA ¶ 32,756; Arthur L. Johnson, PSBCA No. 3894, 97-1 BCA ¶ 28,773.

Rejection of Mr. Momorie’s Excuses

Mr. Momorie argues that his performance deficiencies (which he denies occurred) should be excused because he was inadequately trained. We have found to the contrary and conclude that the contractually-required amount of training was provided (Findings 8, 11, 12, 15, 16). Of course, much of that training was provided to Mr. Momorie’s employees, four of whom quickly left his employment after having been trained (Findings 13, 17, 18).15

Mr. Momorie further argues that any misdeliveries should be excused because he was denied the opportunity to re-deliver the mail. He asserts that having the opportunity to re-deliver would have resolved any question as to whether the misdeliveries took place. Mr. Momorie has not identified a contractual right to re-deliver misdelivered mail. We reject this argument.

Mr. Momorie also contends that the contracting officer’s decision not to initiate an independent investigation of his claims of sabotage by the AO should excuse the default termination.16 The contracting officer determined that an additional investigation was unnecessary because he did not believe Mr. Momorie’s claims of racial conspiracies and sabotage by the AO (Finding 36). Based on his own interactions with Mr. Momorie and his review of Mr. Momorie’s correspondence, the contracting officer believed that Mr. Momorie espoused unjustified harassment claims whenever he disagreed with contract administration decisions. We conclude that the contracting officer’s conduct was reasonable.

The contracting officer relied primarily on the AO’s recommendation to terminate the contract (Findings 32, 36). Reliance on the AO who is responsible for daily contract administration, is appropriate. See Gordon T. Smart, 11-1 BCA ¶ 34,695; see also Stephen Zucker Packages Servs. Plus, PSBCA Nos. 3396, 3397, 3398, 96-2 BCA ¶ 28,282 (well-settled that contracting officer is permitted to rely on reports and investigations of staff in making termination decisions). Moreover, the contracting officer did perform a sufficient investigation (Finding 36), and provided Mr. Momorie an opportunity to cure his performance problems before termination. However, Mr. Momorie continued to deny that the performance problems had occurred even while those performance problems continued (Findings 34, 35, 37).

In any event, as we concluded in another case, substantial friction and hostility between a contractor and Postal Service employees responsible for administering the contract and monitoring performance does not prove bad faith on the Postal Service’s part, especially when the contractor largely precipitated it. Nova Express, PSBCA No. 5102, 08-1 BCA ¶ 33,763, appeal dismissed, 314 Fed. Appx. 297 (Fed. Cir. 2008). Furthermore, the contracting officer’s failure to initiate an investigation by law enforcement officials does not excuse a contractor’s performance breaches and therefore does not invalidate the default termination. See J.M. Carranza Trucking Co. v. United States Postal Service, PSBCA No. 6354, 2014 WL 5343359 (October 21, 2014).17

Mr. Momorie contends that the contracting officer abused his discretion in deciding to terminate the Youngstown Contract for default. We review a contracting officer’s decision for abuse of discretion by examining evidence of bad faith, whether the contracting officer had a reasonable contract-based reason for his decision, the amount of discretion given to the contracting officer, and whether an applicable statute or regulation was violated.18 McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed. Cir. 1999).

As to bad faith, Mr. Momorie must show by clear and convincing evidence, a specific intention to harm him. See Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002). Mr. Momorie has not produced any credible evidence, much less clear and convincing evidence, demonstrating an intention by the contracting officer to harm him. As explained above, we conclude that Mr. Momorie’s poor contract performance presented a reasonable contract basis for the termination decision. We find that the contract’s termination for default clause provides the contracting officer with broad discretion to terminate the contract if the contractor materially breaches his performance obligations. See Sazie Wilson d/b/a Gil Trucking, PSBCA No. 5247, 12-1 BCA ¶ 34,906. Therefore, we conclude that the contracting officer’s termination decision was not an abuse of his discretion. We uphold the default termination, and deny Mr. Momorie’s appeal of the termination for default of the Youngstown Contract.

Decision Not to Renew Contracts

Mr. Momorie has challenged the contracting officer’s decisions to allow Contract Nos. HCR 320DG, HCR 326AG, and HCR 349LO to expire, rather than renew them by mutual agreement. He argues that the contracting officer abused his discretion by not agreeing to renew the contracts, and seeks damages as a result.

The Postal Service challenges our jurisdiction to address the non-renewal issues, for the first time in its post-hearing brief. In the alternative, it argues that if we find that we possess jurisdiction, the contracting officer’s actions were justified.

The Postal Service argues that the correspondence on non-renewal decisions (see, e.g., Findings 50-58) does not rise to the level of claims and final decisions, and that therefore, we do not possess jurisdiction under the Contract Disputes Act. Further, it argues that the Board’s ability to adjudicate non-monetary disputes regarding non-renewals is extremely limited, and that a monetary claim is not before us. We save analysis of our authority to adjudicate non-monetary disputes involving non-renewals for another day because we find that a monetary claim for damages due to those non-renewals is before us.

Mr. Momorie filed a $372,410.84 certified monetary claim dated November 17, 2011, with the contracting officer, and sent a copy to the Board.19 This claim was based on the contracting officer’s decision not to renew the three contracts at issue. (Finding 61). Neither party presented evidence at the hearing about the transmission of this claim, contested its authenticity, or argued that the contracting officer did not receive it. In the absence of such evidence, we presume that the contracting officer received the claim addressed to him in the ordinary course of business. Although the record does not include a responsive final decision from the contracting officer, more than enough time has elapsed for our jurisdiction to have been perfected based on a deemed denial. 41 U.S.C. § 7103(f)(5). We conclude that we possess jurisdiction on this basis.20

Each of the three contracts at issue contained identical language permitting renewal “by mutual agreement of the parties” (Finding 2). In deciding whether to renew a contract that is subject to renewal by mutual agreement, the contracting officer possesses extraordinarily broad discretion, subject to review only for clear abuse of that discretion. See Nova Express, 08-1 BCA ¶ 33,763; James Hovanec, PSBCA No. 4767, 04-2 BCA ¶ 32,805, aff’d., 170 Fed. Appx. 129 (Fed. Cir. 2006); Franklin Wilborn, PSBCA No. 6260, 10-2 BCA ¶ 34,608; Blackstone Consulting, Inc. v. Gen. Servs. Admin., CBCA No. 718, 09-1 BCA ¶ 34,103.

The contracting officer believed that the working relationship between Mr. Momorie and the Postal Service was such that continuing the relationship by renewing contracts did not make business sense for the Postal Service (Finding 56). The contracting officer was entitled to decide not to renew the contracts for that reason. Mr. Momorie routinely wrote antagonistic and hostile correspondence to Postal Service officials, and administration of his contracts was inordinately arduous as a result. The contracting officer reasonably concluded that Mr. Momorie’s behavior was not professional and businesslike, and did not want the Postal Service to have to continue to work with a contractor who would be likely to continue to behave in that manner.21

Mr. Momorie argues that the contracting officer did not renew the contracts in retaliation for his appeal to the Board of the default termination. No evidence has been cited to support such a conclusion. We do not discern a retaliatory motive.

Mr. Momorie also argues that the contracting officer based his decision not to renew the contracts on the incorrect assumption that the letter received by the AO was written by him (rather than by his wife), and that in any event, the letter was non-threatening. Although we find the letter to include obvious threats, as did the AO and contracting officer (Findings 43, 45), the severity of the threatening remarks contained in that letter is beside the point for present purposes.22

In the absence of bad faith, which has not been shown, the contracting officer possessed exceptionally broad discretion to allow contracts to expire by their own terms. His decision not to renew them to avoid continuing a contentious relationship with Mr. Momorie did not abuse that discretion. As we explained in a prior case, an “acrimonious working relationship that had developed provided a reasonable ground for a decision not to renew Appellant's contract.” Nova Express, 08-1 BCA at 167,143; see also AJ Custodial Serv., PSBCA No. 5220, 05-2 BCA ¶ 33,087 (resolving a contentious workplace environment stemming from friction between contractor and postmaster is a reasonable basis on which to exercise a termination on notice provision). We adhere to our precedent, and hold that the contracting officer did not abuse his discretion when he declined to renew Contracts Nos. HCR 326AG, 320DG, and 349LO, and instead allowed them to expire by their own terms.

CONCLUSION

We rule in favor of the Postal Service in each appeal. The appeals are denied.

William A. Campbell
Administrative Judge
Chairman

I concur: 

Gary E. Shapiro
Administrative Judge
Vice Chairman

Peter F. Pontzer
Administrative Judge
Board Member

 

1 Administrative Judge David I. Brochstein did not participate in this Opinion.

2 Mr. Momorie is a Black male of West African descent (Tr. 2 at 152-53).

3 This opinion uses the following conventions to identify the record: “Tr.” followed by 1, 2, or 3 refers to the transcript for the three days of testimony; “AF” refers to the referenced appeal file; “R. Exh” refers to Respondent’s trial exhibits; “A. Exh.” refers to Appellant’s trial exhibits; documents found in the Board’s official case files are identified by docket number (e.g., 6362); “Stip.” refers to the forty-one stipulations filed by the parties.

4 This employee did not testify. During the hearing, Mr. Momorie routinely referred to this former employee simply as “the white guy,” without using his name (Tr. 2 at 167-76).

5 Although Mr. Momorie initially attributed their departure to harassment by the AO, he testified that the AO had precipitated a wage dispute between him and his employees by falsely identifying Mr. Momorie’s contract proceeds. (Compare AF 6362, Tab 3 at 92, Tab 7, with Tr. 2 at 256-58.). Neither of these former employees testified.

6 Neither the fourth nor fifth employees testified.

7 Mr. Momorie does not challenge the Postal Service’s authority to conduct such inspections. See also 39 C.F.R. § 232.1.

8 Mr. Momorie also has suggested that the undelivered mail was planted in his vehicle (AF 6362, Tab 7).

9 We base this finding on the contracting officer’s more credible testimony, which was contradicted by Mr. Momorie’s testimony. Neither Postal Service inspector testified.

10 Mr. Momorie had sent a series of emails to the contracting officer in this period that we have not detailed in this Opinion.

11 The email included an emoji immediately after “country of warriors.” The emoji appears to represent a frowning face.

12 We were impressed with the Postal Service clerk’s candor regarding her role in the workplace altercation with Mr. Momorie.

13 For example, while attempting to evade cross-examination concerning whether he previously had been arrested, Mr. Momorie testified that his height varies between 5’6” and 5’11” (Tr. 2 at 300-02). Additionally, Mr. Momorie repeatedly testified that he did not retain copies of the Irregularity Reports, which he suggested had been altered after he returned them to the AO with his responses (Tr. 2 at 279-86). Ms. Fuster, however, testified that they indeed kept copies of all the Irregularity Reports (Tr. 3 at 44-45) which we find believable based on Mr. Momorie’s retention of other records.

14 In reaching this conclusion, we did not consider the actions addressed in the Irregularity Report involving Mr. Momorie’s role in the argument with the postal clerk.

15 Elsewhere, Mr. Momorie has maintained that he provided any necessary training to his employees and that he, as an experienced contractor, only needed to learn the delivery route of travel (Findings 8, 11, 12, 15, 16).

16 Although we admitted a report issued shortly before trial resulting from a later investigation into the events at the Youngstown Post Office by the Postal Service’s Office of Inspector General which was offered into evidence by the Postal Service, we have given it no weight, effectively granting Mr. Momorie’s objections to consideration of the report. See Tr. 2 at 75; Appellant’s Reply Brief at 28.

17 Mr. Momorie argues that the contracting officer’s decision not to initiate an additional investigation breached the implied covenant of good faith and fair dealing. See Metcalf Constr. Co., Inc. v. United States, 742 F.3d 984, 990-91 (Fed. Cir. 2014). The duty to cooperate with the other contracting party, which can include taking affirmative action, is an element of the duty of good faith and fair dealing. See J.M. Carranza, 2014 WL 5343359. As we stated in Carranza, whether the Postal Service breached the duty to cooperate is determined by the reasonableness of its actions under the circumstances. Id. Having already concluded that the contracting officer acted reasonably in declining to direct an additional investigation, Mr. Momorie fares no better by relying on the implied covenant.

18 Mr. Momorie does not specifically allege a violation of an applicable statute or regulation.

19 Postal Service counsel received a copy served by the Board.

20 The same monetary damages were addressed in one of Mr. Momorie’s complaints without jurisdictional challenge or affirmative defense in the Postal Service’s answer (PSBCA No. 6409 file).

21 Indeed, these types of communications persisted during this litigation when Mr. Momorie wrote to the Board directly despite being advised not to do so because he was represented by counsel. For instance, in a June 14, 2012 letter to the Board complaining about the hearing schedule, Mr. Momorie stated:
            “Justice delayed is Justice denied.” And delaying justice sometimes can lead to catastrophic results, as we saw in Tunisia when a young
            graduate engulfed himself into flames because justice was not met to those in authority who impoverished him and brought his small
            business to an end. . . . Further delay on these matters will continue to punish the innocent and could result to unknown consequences.
In an August 1, 2013 letter to the presiding judge, Mr. Momorie stated:
            We as African Americans should first learn to treat each other with dignity and respect before we can expect other races in America to
            treat us with respect. If the contracting officer [name omitted here] (Black) [parenthetical in original] had investigated PM [name omitted]
            for his racial prejudice and racial animus towards me, he would have found out that the Postmaster has racial prejudice
            towards an African American Entrepreneur. . . . If the Contracting Officer [name omitted] did not give me the honor and respect I
            deserve, I don’t expect any better treatment from a White or Hispanic person. . . . [The contracting officer] has not only disrespected
            me but has resorted to tactics that were used during the Jim Crow era, by sending White Inspectors to my home to harass and 
            intimidate me and my family. . . . Research has showed some African Americans do not treat their fellow African Americans with respect
            and dignity because they have been placed in positions of higher social status that others are not privileged to have [referring either to
            the contracting officer or to the presiding judge].

22 We need not resolve whether Mr. Momorie or his wife wrote the threatening letter, as it does not matter to the outcome. We find that some communications admittedly from Mr. Momorie were threatening (Findings 42, 60, 63). Many others, if not threatening, were unprofessional, intimidating and non-businesslike (Findings 3, 31, 34, 35, 37, 61), contrary to contract requirements (Finding 7).