Appeal of
EDDY M. ACEVEDO
Under Contract No. HCR 32674
PSBCA No. 3217
APPEARANCE FOR APPELLANT
Eddy M. Acevedo
APPEARANCE FOR RESPONDENT
William A. Campbell, Jr., Esq.
OPINION OF THE BOARD
Appellant has appealed the
termination for default of his contract for the delivery of mail on a route in
FINDINGS OF FACT
1.
In December 1991, contract HCR 32674, for the delivery of mail on a
route in
2. Contract general provision 3, "Laws and Regulations Applicable," provided:
"This contract and the services performed thereunder are subject to applicable laws and regulations made pursuant thereto. The Contractor shall faithfully discharge all duties and trusts imposed upon him by such laws and regulations."
3. Clause 16 of the contract general provisions read, in part:
"16. TERMINATION FROM THE POSTAL SERVICE FOR DEFAULT
(a) The Contracting Officer may terminate this contract for default:
* * *
(2) If the Contractor is the subject of administratively determined violations of the Postal laws and regulations and other laws related to the performance of the service:
* * *
(7) If the contractor … (c) is not reliable, trustworthy or of good character . . . ."
4. Postal Service regulations related to conduct on postal property provide, at 39. C.F.R. §232.1(e):
"Disturbances. Disorderly conduct, or conduct which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited."
5.
According to evidence not challenged by Appellant, on numerous occasions
Appellant had made aggressive, unsolicited, and unwelcomed comments and sexual
advances toward at least two women at the Hernando post office who were also
mail delivery contractors. One of the
women, Pamela Collins, became frightened by Appellant's comments and advances
to the point that her ability to perform her work was affected. On one occasion, because of Appellant's
actions, she felt it necessary to leave the post office with her work
unfinished until Appellant left for the day, at which time she returned and
completed her work. Pamela Collins was
married to another mail delivery contractor, Terrance Collins, who worked at
the same post office. On
6. By letter dated March 26, 1992, the Contracting Officer terminated Appellant's contract for default, effective March 21, 1992, citing contract general provision 16(a)(7)(c) (Finding 3). The Contracting Officer also stated that the Postal Service had the right to seek damages for any excess costs incurred in performing the service through the remainder of the contract period. The letter stated that Appellant would be notified by subsequent letter of the amount owed. The record in this appeal, however, contains no such notification or assessment of excess costs. Appellant filed a timely appeal. (AF B, C, D, U).
DECISION
Respondent argues that the termination for default was proper for two reasons. First, Respondent argues that the fight which Appellant initiated constituted a disturbance which, in violation of Postal Service regulations (Finding 4), interrupted the orderly conduct of postal operations and impeded postal employees in the performance of their duties. Second, Respondent contends that the numerous unwanted sexual advances which Appellant made toward the two female contractors establish that he was not "of good character" and justify the termination for default under clause 16 (a)(7) of the general provisions.
Appellant, who submitted no evidence challenging the facts set out above, relies exclusively on legal arguments. As to the default, Appellant argues that clause 16(a)(7)(c) cited in the termination letter does not mention fighting as a cause for termination, but only covers a contractor who is not "reliable, trustworthy, or of good character." Appellant takes the position that the language of the clause does not apply to this situation, that it was wrongfully applied, and that the "charges" should be dismissed.
As to the assessment of excess costs, Appellant argues that, contrary to the Contracting Officer's assertion, the contract language does not allow the assessment of damages for the period after the termination of the contract.
Under similar circumstances, this Board has upheld the default termination of a contract, under clause 16(a)(2) of the general provisions, where the contractor initiated a fistfight with a postal employee in a postal facility. Pascal Redfern, PSBCA No. 1512, 87-1 BCA ¶ 19,646. In the appeal before us, the evidence establishes that Appellant adversely affected the work of at least one female contractor, Pamela Collins, by making repeated aggressive, unwanted, and unsolicited comments and sexual advances toward her. In addition, the evidence establishes that Appellant initiated the physical violence which occurred when he punched Terrance Collins, necessitating the intervention of a postal supervisor and another contractor. Appellant's actions significantly disrupted the orderly performance of work at the post office. These actions constituted violations of clause 3 and grounds for termination under clause 16(a)(2) of the general provisions.
Appellant's challenge to an assessment of excess costs is premature and will not be addressed since the record does not reflect that the Contracting Officer has made any such assessment.
The appeal is denied.
David I. Brochstein
Administrative Judge
Board Member
I concur
James A. Cohen
Administrative Judge
Chairman