In the Matter of ) July 20, 1972 ) RICHARD C. LOUGH ) 211 Hewitt Drive ) Billings, Montana 59102 ) P.S. Docket No. 1/130 Wenchel, Adam G.
This is an appeal from a notice of suspension of the above-named Respondent from eligibility as a contractor or subcontractor on Postal Service contracts. The notice dated June 7, 1972, issued pursuant to Section 956.9 1/ gave notice that the Respondent was being suspended for a period of 120 days and gave the Respondent notice of his appeal rights.
The grounds for the suspension were stated as follows:
"This suspension is based upon investigation and adequate evidence that you have committed irregularities of such a serious and compelling nature relative to Star Route Contract No. 59143, Billings, Montana - Yellowstone National Park, Wyoming, as to affect your responsibility as a government contractor and which warrant your being suspended from being awarded U. S. Postal Service Contracts. Specifically, these areas of irregularity are the assault by you on March 5, 1971, upon a female Postal Service Employee, Mrs. Mary J. Bauer, Officer-in-Charge at Gardiner, Montana, and circumstances attendant thereto. Your actions, consequently, were in violation of Clause 16(a)(10) of the General Provisions of your contract. This evidence was found adequate by the U. S. Postal Service Board of Contract Appeals, in the Appeal of Richard C. Lough, POD BCA No. 508 (decided November 3, 1971), to support its findings of fact that you did unjustly and unlawfully assault said Mrs. Mary J. Bauer. The specific factual findings of the Postal Service Board of Contract Appeals, which were rendered after the consideration of adequate evidence, and upon which this suspension is based, are set forth in the Board's decision, a copy of which is enclosed herewith."
The Respondent filed a timely appeal in accordance with § 957.27 of the applicable Rules of Practice. Neither oral argument nor a hearing has been requested. The only two issues raised by Respondent do not require the taking of testimony. In view of the foregoing, the appeal is being considered on the written record as provided in Section 957.27(c).
The appeal is based on two contentions. These are set out and discussed below.
First Contention
"1. The basis for the suspension is that Respondent assaulted an officer in charge. Respondent contends that his original termination was allegedly because of an 'altercation' and that nowhere in the Appeal of Richard C. Lough, P.O.D. BCA No. 508 (decided Nov. 3, 1971) did the Board find that an 'assault' had taken place, therefor, the suspension has no basis in fact."
The Board's ultimate findings include the following:
"3. When, in the authorized and proper performance of her duties, the Officer-in-Charge of the Gardiner, Montana, post office told Appellant of his infraction of regulations governing the safe transportation of the mails, Appellant reacted in an unreasonable, unwarranted and excessive manner.
"4. The actions of Appellant on March 5, 1971, in regard to the Officer-in-Charge of the Gardiner, Montana, post office demonstrate that Appellant does not possess that reliability required of a star route contractor."
Insofar as relevant here those findings are based upon the assessment of the evidence as follows:
"The Board accepts the statement by the Officer-in-Charge of the Gardiner post office as being a substantially accurate account of the events of March 5, 1971, and finds that Appellant's statement of March 9, 1971, tends to support the statement by the said Officer-in-Charge. The Board doubts the accuracy of Appellant's assertion in a later statement by him made on March 18, 1971, that he employed only such force as was necessary to move Mrs. Bauer's arm away from the door of the truck."
The statement of the Officer-in-Charge is summarized by the Board as follows:
"Mr. Lough, according to one account, then threw the rest of the mail off the truck. Next, he picked up a sack of mail that had fallen between the cart and the truck, threw the sack on the cart and shoved the cart toward Mrs. Bauer. Mrs. Bauer dodged but some of the sacks hanging over the side of the cart hit Mrs. Bauer.
"Next, Mr. Lough slammed the door on the truck and shoved the mail cart again. Mrs. Bauer moved again and in doing so found herself by the truck door. Mr. Lough started down the steps of the loading dock when Mrs. Bauer, referring to the truck door, said: 'That isn't locked.'
"Mr. Lough spun around and yelled 'God dammit, it is locked.' Mrs. Bauer said that the door was not locked and she reached up and flipped the lever. The door opened.
"Mr. Lough swore at Mrs. Bauer and began hitting her on the arm with his fists. Mrs. Bauer called the names of several persons for help but no one came. Finally, after a few moments during which he was yelling and swearing at Mrs. Bauer, Mr. Lough backed away from her. Then, he got into his truck and drove a few feet. Apparently remembering that the truck door was open, he stopped, closed the door (without locking it), and drove away."
It is true that the Board did not use the word "assault" in its decision. It did, however, make findings concerning the Contractor's conduct that included all the elements of assault. Clearly, there is adequate evidence to support the suspension.
Second Contention
"2. The above-mentioned Appeal is currently being reviewed by the Federal Courts in Civil Action No. 1026, in the Billings Division of the Montana District, and therefore any suspension should not be considered until such appeal is completed."
As shown above, the Postal Service Board of Contract Appeals necessarily found in its decision in the Appeal of Richard C. Lough, P.O.D. BCA No. 508 the facts concerning the occurrence on which the instant suspension is based. Accordingly, the principle of administrative res judicata requires that the Board's findings control in this proceeding. The institution of suit by Respondent does not make the Board's decision less binding. Unless and until a final judicial determination sets aside the Board's decision it remains in effect as a final decision.
In addition, the purpose of a suspension is to produce an immediate but temporary bar to contracting. Delay of a suspension pending completion of a law suit on a collateral matter would defeat the purpose of the suspension. Accordingly, the second contention of Respondent is not a basis for setting aside or postponing the suspension of the Respondent.
Section 956.9(a) of the applicable Rules (39 C.F.R. 956.9(a)) prescribes the contents of a notice of suspension. Subparagraph (2) of that section requires the notice to advise the Respondent that the suspension is for a temporary period "pending the completion of an investigation and such other proceeding as may follow therefrom." No such statement is contained in the notice of June 7, 1972. Accordingly, the notice is insufficient and therefore invalid.
The suspension is set aside and the Administration Department shall strike Respondent's name from the ineligible list and advise Contracting Officers of that action as provided in Section 956.3(d).
This Decision does not preclude the imposition of a new suspension if, as appears likely, an investigation is pending, or if the suspension is to cover the time necessary to institute and complete "proceedings as may follow" from the investigations.
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