Appeal of
SHARON RHOADES
Under Contract No. HCR 96055
PSBCA No. 3455

APPEARANCE FOR APPELLANT:
Sharon Rhoades

APPEARANCE FOR RESPONDENT:
Robyn M. A. Sembenini, Esq.

OPINION OF THE BOARD

            Appellant, Sharon Rhoades, has appealed the default termination of her highway transportation contract with the United States Postal Service, Respondent.  The termination followed Appellant's written resignation from the route.  A hearing was held in Redding, California, at Appellant's request.

FINDINGS OF FACT

            1.  June 26, 1991, Appellant and Respondent renewed Appellant's contract for delivery of mail between Dunsmuir and Lakehead, California.  The renewal term was July 1, 1991, through June 30, 1995[1] (AF 2-19; Stipulation of Facts, dated December 14, 1993 ("Stip.") ¶¶ 1-4).

            2.  As adjusted September 27, 1991, the contract schedule required Appellant to begin work at the Dunsmuir Post Office and to depart Dunsmuir at 8:15 a.m., arriving at the Lakehead Post Office at 9:05 a.m.  Appellant was to case mail into delivery order at Lakehead until her scheduled departure at 11:00 a.m. to deliver the route.  After delivering the Lakehead end of the route, Appellant made another stop at the Lakehead Post Office before her return to the Dunsmuir Post Office (AF 26).  Most of Appellant's mail casing was performed at the Lakehead Post Office (Transcript page ("Tr.") 15).

            3.  General Provision 5 of the contract requires the contractor to "comply with all safety measures for protection of the general public and operating personnel" and states, in subsection (b)(2)(d), "Extreme caution, even to the extent of stopping operation if necessary, shall be exercised by drivers when hazardous road or weather conditions prevail."  (AF 19, PS Form 7407T (March 1989), Basic Surface Transportation Services Contract General Provisions, General Provision ("GP") 5).

            4.  The contract authorizes the contracting officer to terminate the contract for default "[f]or Contractor's failure to perform service according to the terms of the contract," and such termination "shall not impair the right of the Postal Service to damages from the Contractor . . . ."  (GP 16 (a), (c)).

            5.  If after Respondent terminates a highway contract for default "it is determined for any reason that the Contractor was not in default under the provisions of [the termination for default] Clause, or that the default was excusable" the termination will be deemed to have been pursuant to the termination for convenience provision of the contract, GP 17 (AF 19, GP 16 (c)). The contractor's remedy for a termination for convenience is to recover an indemnity, which, for terminations within the first two years of the contract, would be one-third of the annual rate (AF 19, GP 12 (d), 17).

            6.  GP 15 provides, in part:

"The Contracting Officer is authorized to release the contractor from the contract for reasons of physical disability which will prohibit the contractor from adequately operating the route, or will endanger the contractor's life if he continues to operate the route." (AF 19).

Applications for such a release must be made to the contracting officer (id.; Tr. 16).

            7.  During the course of her contract, Appellant regularly dealt with the contracting officer and his staff on contract matters such as adjustments under the contract and the 1991 renewal (Tr. 85, 103, 104; AF 4-17, 19, 20, 22, 26-29, 31, 33, 34, 36-38).

            8.  Only the contracting officer had authority to alter or terminate Appellant's contract (Tr. 15-16, 26-27), but the postmaster at Dunsmuir was delegated the day-to-day administrative responsibility over Appellant's contract as the administrative official identified in the contract (Tr. 15, 26; AF 19, Contract Section 6).  The Lakehead Postmaster had no authority to administer the contract (Tr. 15; AF 19).

            9.  In December 1992 and January 1993, the Dunsmuir/Lakehead area experienced its worst winter weather in years, and on many occasions driving conditions were very hazardous (Tr. 57, 74, 92, 97; Appellant's Exhibits ("AX") 20, 21).  In December 1992, the Dunsmuir Postmaster advised Appellant that she did not have to deliver the route if weather conditions were too hazardous (Tr. 76, 93; AX 7).

            10.  When casing mail at Lakehead, Appellant preferred to case as much mail as she could before she was scheduled to depart and then to leave the post office at or about the scheduled time to deliver the route even if there remained mail to be cased (Tr. 76, 82, 92-94, 96-97).  Leaving Lakehead later than her scheduled departure time caused Appellant stress which she felt could cause her to have an accident (Tr. 47, 48, 50, 75, 97).

            11.  The Lakehead Postmaster insisted that Appellant remain beyond the scheduled departure time if necessary to case all available mail.  The postmaster threatened to lock Appellant out of the post office and write irregularity reports for every minor infraction if Appellant did not follow the postmaster's instructions (Tr. 81, 97, 101, 102).  Tension between Appellant and the Lakehead Postmaster increased through December and January, and there were a number of verbal altercations between them (Tr. 42, 44, 49-50, 59, 80, 97, 108; AF 35; AX 14, 19).  Both the postmaster and Appellant were argumentative and used harsh language to express their disagreements; neither was blameless in provoking the altercations (Tr. 46, 49-50, 95; AF 48; AX 7, 19).

            12.  The Lakehead Postmaster issued PS Form 5500s, Contract Route Irregularity Report, on December 15, 28, and 30, 1992, January 2, 4, 5, and 6, 1993, reciting that Appellant left behind third class mail.  The postmaster also noted on the 5500s examples of what she characterized as disrespectful conduct by Appellant (AF 39-46; AX 5, 6, 8).

            13.  Because the third class, bulk business mail was generally larger and of varying sizes, casing the First-Class Mail first was most efficient, and in the past Appellant had been given First-Class Mail to sort first at the Lakehead Post Office (Tr. 41, 81).  Receiving third class mail before First-Class slowed casing (Tr. 33, 41, 43, 44, 81).  On December 30, 1992, and January 5, 7 and 8, 1993, for no reason apparent in the record, the Lakehead Postmaster refused to give Appellant the First-Class Mail to sort first, requiring Appellant to case third class mail first.  Additionally, when Appellant was given the First-Class Mail, it was not given to her all at once which also slowed down her work.  (Tr. 33-35, 41, 43, 45, 61-63, 78, 82, 101; AX 3, 5, 7, 19).

            14.  On January 4, 1993, the Lakehead Postmaster locked Appellant out of the post office, took Appellant's keys to the post office and barred Appellant from using the door normally used by carriers to enter and leave the post office, all for no reason apparent in the record.  These actions of the postmaster caused Appellant's work to be more difficult and to take longer (Tr. 32, 62, 77-80, 98-100; AX 3, 5,19), but they did not prevent Appellant from performing her duties (Tr. 98).

            15.  Appellant was a good carrier (Tr. 27, 49, 71, 96; AF 2), and the record does not reflect why Appellant did not have time at Lakehead to case all of the available mail.

            16.  On the afternoon of January 8, 1993, Appellant's car broke down as she was returning to Dunsmuir from Lakehead.  She called the Dunsmuir Postmaster, and he drove out to pick up her and her assistant.  On the ride back to Dunsmuir, Appellant was upset, expressed dissatisfaction with the route, and discussed resigning.  The Dunsmuir Postmaster told Appellant that contractors resign all the time and that nothing would happen to her if she resigned (Tr. 66, 85-86, 112).  When they returned to the post office, she and the postmaster went into the post office, and Appellant wrote out a note stating that she was resigning for extreme personal reasons effective January 9, 1993 (Tr. 27-29, 85; AF 49).  The postmaster suggested wording for the resignation letter, but he did not force her to resign (Tr. 29, 68, 112).  Appellant gave the note to the postmaster, turned in her Dunsmuir keys and left the post office (Tr. 29, 30, 32).  Appellant did not perform service on the route on January 9 or thereafter (Tr. 29-30, 54, 87).

            17.  The Dunsmuir Postmaster arranged for coverage of the route for the next day, January 9, and, on January 11, 1993, forwarded Appellant's resignation to the transportation specialist in Redding (Tr. 19; AF 49).

            18.  By letter dated February 19, 1993, the contracting officer terminated Appellant's right to perform the contract, citing General Provision 16(a), for Appellant's "failure to perform service and repudiation of the contract."  (AF 50).  The contracting officer also pointed out that Appellant could be held liable for the reprocurement costs associated with procuring service on the route for the remainder of the term of her contract.  The sole basis for the termination was Appellant's submission of the letter resigning the contract (Tr. 18, 19).  The alleged deficiencies shown in the 5500s issued by the Lakehead Postmaster were not considered in making the decision (Tr. 24).  Reprocurement costs have not been assessed (Tr. 6, 17).

            19.  Appellant would not have resigned if she had known the Postal Service could seek reprocurement costs from her (Tr. 79, 83, 105-106, 110, 112), but she did not attempt to rescind her resignation or ask Respondent to reinstate the contract after she received the final decision (Tr. 19, 31, 54, 86).

            20.  At the time of her resignation and before, Appellant was experiencing personal problems which included loss of her home in a February 1992 fire and involvement in two automobile accidents in 1989 that totaled the vehicles she had been using for the route (Tr. 46, 73, 74, 106; AX 10, 17, 18, 23).

DECISION

            Appellant argues that the termination of her contract was improper because she was misled by the Dunsmuir Postmaster about the consequences of her resignation.  She further argues that she was harassed by the Lakehead Postmaster to the point of breaking down and that such harassment, when coupled with the hazardous weather conditions and Appellant's personal problems, made it impossible for her to continue to perform the contract.  She also contends that the management style at post offices is unresponsive to the needs of its employees and that that condition results in stress among postal workers.[2]

            Respondent argues that Appellant's contract was properly terminated based on Appellant's resignation and her failure to perform under the contract thereafter.  It denies that the Lakehead Postmaster unduly harassed Appellant and contends that Appellant's resignation and failure to perform were not excused by weather conditions.  It also contends that Appellant's resignation was not coerced by the Dunsmuir Postmaster.[3]

            There is no dispute that on January 8, 1993, Appellant resigned the contract and did not perform any duties thereafter.  Appellant's actions are sufficient grounds for a default termination of the contract unless the reasons for her resignation constitute excusable grounds for nonperformance or her failure to perform was caused by a material breach by Respondent of its obligations under the contract.  Michael N. Beckloff, PSBCA No. 2249, 89-2 BCA ¶ 21,767 recon. denied 89-3 BCA ¶ 22,118; John S. Vayanos Contracting Co., PSBCA No. 2317, 89-1 BCA ¶ 21,494 at 108,294; Pamela J. Sutton, PSBCA No. 1622, 88-2 BCA ¶ 20,680 at 104,539.

            The Lakehead Postmaster's refusal to provide Appellant the mail for casing in the most efficient order, taking Appellant's keys to the post office and barring Appellant's access by the most convenient route to her work area hindered Appellant's performance.  That conduct violated Respondent's implied duty under the contract not to interfere with Appellant's performance.  See Malone v. United States, 849 F.2d 1441, 1446 (Fed. Cir. 1988); Hector Rivera Ruiz, PSBCA No. 1756, 88-3 BCA ¶ 20,829 at 105,334.  However, while making Appellant's work in the Lakehead Post Office more difficult, the postmaster's conduct did not prevent Appellant's performance, see Lee McLaughlin, PSBCA No. 2199, 89-1 BCA ¶ 21,377 at 107,742; Hector Rivera Ruiz, supra; Estelle McCormick, PSBCA No. 1030, 83-2 BCA ¶ 16,574 at 82,417, or otherwise amount to a material breach of Respondent's duty to cooperate, see Fowler & Butts, PSBCA No. 2545, 91-1 BCA ¶ 23,391; John S. Vayanos Contracting Co., supra; Brand S Roofing, ASBCA No. 24688, 82-1 BCA ¶ 15,513 at 76,958.

            Appellant was thus not entitled to abandon performance of the contract because of the Lakehead Postmaster's interference.  Appellant's remedy for this interference was to file a claim with the contracting officer for any increased costs resulting from the interference.  See John Horsley, PSBCA No. 1464, 86-3 BCA ¶ 19,141 at 96,747 recon. denied 87-1 BCA ¶¶ 19,413, 19,450; Estelle McCormick, supra; Brand S Roofing, supra, at 76,956.

            Except as noted above, Appellant did not show that her adversarial relationship with the Lakehead Postmaster and the altercations between the two significantly interfered with Appellant's performance.  See Southland Constr. Co., VABCA Nos. 2217, 2543, 89-1 BCA ¶ 21,548 at 108,455.  Moreover, it is not evident from the record that the postmaster was solely responsible for the altercations and that Appellant was blameless.  Both Appellant and the postmaster engaged in the exchange of harsh words, and the evidence did not establish who was the instigator.

            Appellant has not shown that she resigned because she was required to perform the route notwithstanding the existence of conditions that would have excused her nonperformance.  Appellant was aware that she was not required to deliver the mail in hazardous conditions.  While the weather during December 1992 and January 1993 was more severe than usual, Appellant failed to show that travel was impossible or so hazardous on any particular day or days that she should have been excused from delivering the route.  See Arnette B. Fleming Hauling, Inc., PSBCA No. 2872, 91-2 BCA ¶ 23,868; Estelle McCormick, supra. Although leaving Lakehead behind schedule caused Appellant stress, she did not demonstrate a direct connection between late departure and any particular hazard, and Appellant did not demonstrate that she remained at Lakehead beyond her scheduled departure time.  In fact, the conflict with the Lakehead Postmaster was over Appellant's refusal to leave late. 

            Appellant wanted to give up the contract.  Based on the Dunsmuir Postmaster's advice that highway contractors resign their routes all the time and that nothing would happen because of her resignation, Appellant thought she could resign and free herself of the pressure of the route without liability.  When she received the contracting officer's final decision terminating the contract for default, she found that Respondent could assess her the cost difference for reprocuring service on the route for the remaining term of her contract.  While not doubting Appellant believed her resignation would be without liability, we cannot conclude that reliance on the Dunsmuir Postmaster's representation was reasonable in view of Appellant's long experience in dealing with the contracting officer and his staff on contract issues such as the renewal and adjustments.  Additionally, the contract specifically authorized the contracting officer to terminate the contract for Appellant's failure to perform and to recover reprocurement costs from Appellant, and the Dunsmuir Postmaster would not have had the requisite authority to release Appellant from contractual liability.  See Edward R. Ester and Lorraine Ester, PSBCA No. 3051, 93-3 BCA ¶ 25,960 at 129,096.

            While the tension in the Lakehead Post Office undoubtedly added to the stress Appellant felt, events unrelated to her postal contract also contributed to it, and Appellant has not shown that the stress she experienced caused her resignation to be other than voluntary.  The contract provided for a release of the contractor for health reasons under certain conditions, see Alvin P. Koetitz, PSBCA No. 1261, 1985 WL 16639, June 6, 1985, but Appellant did not seek such a release.

            Finally, Appellant's criticism of Respondent's management style has no bearing in this appeal.  Except as noted above, she has not shown how Respondent's management practices affected her performance of the contract or her decision to resign.

            The appeal is denied.

Noman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman

[1]  References in this Opinion to the "contract" refer to the renewal contract.

[2]  Appellant attached to her brief a number of documents to bolster her arguments.  All but three of those (Brief Exhibits 4, 8 and 10) are already in the record.  Appellant has offered no explanation why Brief Exhibits 4, a June 2, 1993, notice of the sale of Appellant's vehicle after repossession, and 8, the route irregularity report for January 2, 1993, (AF 42) bearing Appellant's explanation, could not have been offered at the hearing.  Brief Exhibit 10 is a sketch of the Lakehead Post Office offered to show the inconvenience resulting from the postmaster's requirement that Appellant use the front door.  That document could have been prepared and offered at the hearing.  These documents, therefore, will not be received in evidence.  39 C.F.R. §955.14(b); Edward K. Dilworth, ADA Contractors, Inc., PSBCA Nos. 1205, 1248, 84-2 BCA ¶ 17,346 at 86,431.  Moreover, none of the three documents, if admitted, would have any effect upon the findings and outcome of this opinion.  Id. 

[3]  In pleadings and at the hearing, Respondent raised a possible counterclaim against Appellant for recovery of a payment made to Appellant after she ceased performing on the contract.  The issue was abandoned in Respondent's brief.  As the contracting officer has not asserted the claim in a written final decision, it is beyond our jurisdiction, and that part of Respondent's claim is dismissed without prejudice.  See 41 U.S.C. §605(a); Sharman Co. v. United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993).