March 25, 2019

JOYCE ANN MCELROY v. UNITED STATES POSTAL SERVICE

PSBCA No. 6712

APPEARANCE FOR APPELLANT
Joyce Ann McElroy

APPEARANCE FOR RESPONDENT
Richard Y. Rho, Esq.
United States Postal Service Law Department  

OPINION OF THE BOARD

Joyce Ann McElroy appeals the default termination of her mail delivery contract.  We deny her appeal and rule in favor of the United States Postal Service.

FINDINGS OF FACT

1. The Postal Service and Ms. McElroy were parties to a fixed-price, mail delivery contract, HCR 67872, with a performance period from April 1, 2015, to March 31, 2019 (AF 1).
2. The contract required Ms. McElroy to deliver mail to 104 boxes along a 104.2 mile route (AF 1 at 14-15).
3. The contract’s Statement of Work identified the line of travel for the route by providing sixty-two separate directions for driving the route that began and ended at the Johnson, Kansas, Post Office (AF 1 at 14-15).
4. The contract’s General Requirements and Prohibitions clause required that “[t]he supplier shall provide transportation services as specified in [the] Statement of Work.”  In addition, the clause provided that “[t]he supplier shall carry all mail tendered for transportation under this contract . . . with certainty, celerity, and security, in accordance with the operating schedule and between the points fixed in the schedule . . . .”  (AF 1 at 18).
5. The contracting officer designated the Johnson, Kansas, Postmaster as the contract’s Administrative Official for supervising and administering the contract (AF 1 at 16, 34; AF 34 at 111; AF 35 at 116).
6. The contract included a Termination for Default clause which provided:
   The Postal Service may terminate this contract, or any part hereof, for default by the supplier, or if the supplier fails to provide the Postal Service upon request with adequate assurances of future performance. . . .  If it is determined that the Postal Service improperly terminated this contract for default, such termination will be deemed a termination for convenience. (AF 1 at 40).
7. The contract included an Events of Default clause which provided:
   The supplier’s right to perform this contract is subject to termination under the clause entitled Termination for Default.  The following constitute events of default, and this contract may be terminated pursuant to that Clause.
   • a.  The supplier’s failure to perform service according to the terms of the contract; . . .
   • c.  Failure to follow the instructions of the contracting officer;
     (AF 1 at 47).
8. The contract’s Claims and Disputes clause provided, in relevant part:
   • b.   Except as provided in the [Contract Disputes] Act, all disputes arising under or relating to this contract must be resolved under this clause.
   • j.  The supplier must proceed diligently with performance of this contract, pending final resolution of any request for relief, appeal, or action arising under the contract, and comply with any decision of the contracting officer.
     (AF 1 at 44-45).
9. After speaking with a customer on November 24, 2017, the Postmaster realized that Ms. McElroy was not following the line of travel required by the contract.  The Postmaster then discussed that issue with Ms. McElroy.  Ms. McElroy refused to explain why she delivered the mail out of sequence and cursed at the Postmaster before leaving.  The Postmaster documented these events on a PS Form 5500, Contract Route Irregularity Report.  (AF 2 at 59; Appellant’s Notice of Appeal at 3). 
10. Between the end of November 2017 and early January 2018, the Postmaster directed Ms. McElroy several times to deliver mail according to the line of travel in the contract (AF 3 at 60).
11. From January 11 through January 18, 2018, the Postmaster documented Ms. McElroy’s failure to follow the line of travel on seven PS Form 5500s.  The forms were provided to Ms. McElroy who was given the opportunity to respond, but did not do so.  (AF 3-8 at 60-65; AF 13).
12. On January 17, 2018, the Postmaster followed Ms. McElroy during her route and completed an Observation of Driving Practices report (PS Form 4584).  The purpose of the observation and report “is to improve driving practices by identifying and correcting actions that could lead to accidents and injuries.”  (AF 27 at 87).
13. In the report, the Postmaster noted that Ms. McElroy failed to follow the contract’s line of travel, stating that she made multiple unapproved u-turns on heavily traveled highways, crossed the highway to service a box on the opposite side of the highway and then returned back to her delivery route, and delivered mail to a nursing home at the start of her route instead of the end as required by the line of travel in the contract.  (AF 7 at 64; AF 27 at 87).
14. On January 19, 2018, the Postmaster conducted an informal conference with Ms. McElroy and again directed her to follow the line of travel.  In response, Ms. McElroy made derogatory comments to the Postmaster.  (AF 9 at 66; AF 10 at 67; AF 13 at 71; AF 34 at 112).
15. Notwithstanding the January 19 meeting, from January 20 through January 24, 2018, Ms. McElroy continued to deviate from the line of travel (AF 14-17 at 72-75; AF 34 at 112).
16. On the morning of January 25, 2018, the Postmaster held a formal meeting with Ms. McElroy before she began her route.  The Postmaster provided Ms. McElroy with GPS tracking data showing that she had not been following the contract’s line of travel.  (AF 17; AF 18 at 76; AF 33 at 107-09; AF 34 at 112-13).
17. Ms. McElroy then left the meeting, removed the mail from her vehicle, and did not deliver mail on January 25, 2018, or any day thereafter (AF 20 at 78-79; AF 33 at 109; AF 34 at 113).
18. On January 26, 2018, the purchasing specialist working for the contracting officer drafted a letter demanding assurance from Ms. McElroy that she would perform the contract.  The letter provided in relevant part:  “I request that you respond in writing to this office no later than Monday, January 29, 2018, with adequate assurances of future performance on HCR contract 67872.  The contract may be terminated for default if the contract requirements are not met.”  (AF 28 at 98-99; AF 35 at 116).
19. Because Ms. McElroy had not provided an email address (as required by the contract), the purchasing specialist called her and read the demand for assurance letter over the telephone on January 26, 2018 (AF 1 at 39; AF 28 at 94, 98-99; AF 35 at 116-17; Notice of Appeal at 7).  Ms. McElroy did not provide the demanded assurance and did not deliver the mail after January 24, 2018 (AF 26 at 85-86; AF 28 at 98-99; AF 35 at 117-19).
20. On February 7, 2018, the contracting officer issued a final decision terminating the contract for default for failure to perform (AF 26 at 85-86; AF 35 at 119).
21. Ms. McElroy filed a timely notice of appeal challenging the termination for default.  At the request of both parties, this case is being decided on the written record.¹

DECISION

The Postal Service bears the burden of proving that its default termination of the contract was justified.  See Greene v. United States Postal Service, PSBCA No. 6484, 16-1 BCA ¶ 36,297 (citing Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987)).  Once the Postal Service does so, the burden of proof shifts to Ms. McElroy “to show an excusable cause for [her] defaults or to show that the contracting officer abused his discretion.”  Id. (citing JM Carranza Trucking Co. v. United States Postal Service, PSBCA No. 6354, 14-1 BCA ¶ 35,776).
Ms. McElroy stopped performing on January 24, 2018 (Findings 17-19).  When asked for assurances that she would perform, she failed to provide any (Finding 19).  We have held that “[t]he complete failure to perform constitutes the most fundamental and material of contract breaches justifying default termination.”  Greene, 16-1 BCA at 177,004 (citing Hubbard Trucking, Inc., PSBCA No. 3701, 04-2 BCA ¶ 32,667).  The Postal Service has therefore met its burden by showing that the termination for default was justified.²
The burden thus shifts to Ms. McElroy to show an excuse for her non-performance.  She generally argues that she was harassed, treated unfairly, and should have had greater freedom to deliver the mail as she saw fit.  As to the first points, harassment and unfair treatment, Ms. McElroy has not presented any evidence to support her assertion.  The only document in the record supporting her position is an unspecific, unsworn statement outlining her general complaints.  That type of uncorroborated evidence, however, is not sufficient to excuse her non-performance.  See E & J Trucking, PSBCA No. 5092, 09-1 BCA ¶ 34,073. 
Ms. McElroy also argues that she was not required to follow a specific line of travel (Findings 2-4).  The contract’s Claims and Disputes clause required Ms. McElroy to continue performance even if she disagreed with the Postal Service’s application of the contract’s line of travel requirement (Finding 8).  She also has not explained why she should be excused from the line of travel requirement even if she disputed its application.  In the absence of any explanation whatsoever, her non-performance is not excused.  Marlena R. Antrim, PSBCA No. 2149, 88-3 BCA ¶ 21,108.

CONCLUSION AND ORDER

The Postal Service has proved that the termination for default was justified; accordingly, we rule in favor of the Postal Service.  The appeal is denied.

Peter F. Pontzer
Administrative Judge

Gary E. Shapiro
Administrative Judge
Chairman

Alan R. Caramella
Administrative Judge
Vice Chairman