January
27, 1994
Appeal
of
ROBERT
EARL LANIER
Under
Contract No. HCR 27984
PSBCA No. 3143
APPEARANCE
FOR APPELLANT:
John
A. Mauney, Esq.
APPEARANCE
FOR RESPONDENT:
B.
J. Meadows,
OPINION OF THE BOARD
Appellant
has filed an appeal from a Contracting Officer's decision terminating
Appellant's highway transportation contract for default. A hearing, limited to the issue of the
propriety of the default termination, was held at Appellant's request.
FINDINGS OF FACT
1. Appellant was awarded contract number HCR 27984 on May 25, 1990.
Under its terms Appellant was to provide daily box delivery service in Kitty
Hawk, North Carolina, for an annual contract price of $21,967.47. As part of the delivery service Appellant was
also required to case the mail and load it into his vehicle. The contract service commenced on July 1,
1990, and was scheduled to end on June 30, 1994 (Appeal File (AF)-1, 3).
2. The contract's General Provision (PS Form
7407T, March 1989) contained a "Termination By the Postal Service for
Default" provision which stated in pertinent part:
(a) The
contracting officer may terminate this contract for
default:
(1) For
Contractor's failure to perform service according to the terms of the contract.
(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;
(3) For the
Contractor's disobedience of the instructions of the contracting officer; [or]
* * *
(7) If the
Contractor . . . (c) is not reliable, trustworthy, or of good character.
The
clause provided that if a default was subsequently found to be excusable it
would be treated as a termination for convenience (AF-6).
Clause
3, "Law and Regulations Applicable," of the contract's General
Provisions states:
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 (AF-6).
3. Title 29 of the Code of Federal Regulations,
Section 1604.11, Sexual Harassment, states, in relevant part:
(a)
Harassment on the basis of sex is a violation of section 703 of title V
* * *
(e) An
employer may also be responsible for the acts of non-employees, with respect to
sexual harassment of employees in the workplace, where the employer (or its
agents or supervisory employees) knows or should have known of the conduct and
fails to take immediate and appropriate corrective action. . . . (AF-40)
4. Title 39 of the Code of Federal Regulations,
Part 232, Conduct on Postal Property, states, in relevant part:
§231.1 "(a)
Applicability. This section
applies to all real property under the charge and control of the Postal
Service, to all tenant agencies, and to all persons entering in or on such
property. This section shall be posted
and kept posted at a conspicuous place on all such property.
* * *
(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, . . . is prohibited." (AF-37)
5. During the first couple of months of
Appellant's contract the Kitty Hawk Postmaster rated Appellant's performance as
very good and commended him and also found him to be trustworthy (Transcript
(Tr.) 46-47). Appellant generally
performed his job as required. However,
he had an aggressive personality and was outspoken and somewhat abrasive (Tr.
32, 177-78, 223-24).
6. In August 1990, the Kitty Hawk Postmaster
instructed Appellant to forward certain mail addressed to the Buccaneer
Motel. On May 31, 1991, Appellant
apparently did not forward some mail addressed to the Buccaneer Motel and on
June 3, 1991, was orally reprimanded by the Postmaster. On August 3, 1991, the Postmaster issued
Appellant a PS Form 5500 "Report of Contract Route Irregularity" for
failure to forward Buccaneer Motel mail. Another Form 5500 was issued to Appellant on
August 17, 1991, for failure to respond to the August 3 Form 5500 (AF-14-18;
Tr. 27-28).
7. On August 19, 1991, the postmaster admonished
Appellant for discussing with a customer or patron the relocation of a
collection box and moving the box.
According to the Postmaster relocation matters and discussions were within
her domain, not Appellant's (Tr. 29; AF-19).
8. On August 29, 1991, the Postmaster admonished
Appellant for being rude to a customer who was parked in front of a collection
box in a fire lane. Appellant stated
that he would call the customer and apologize (Tr. 31; AF-21).
9. On September 16, 1991, a Form 5500 was issued
to Appellant for using a marker on a customer's or patron's mail box in order
to relocate the address shown on the box to the proper location. Appellant did not respond to the 5500
(AF-22).
10. Another Form 5500 was issued to Appellant on
October 22, 1991, for deviating from the line of travel set forth in his
contract. The deviation occurred because
Appellant had authorized some customers to relocate their mail boxes off the contract's
line of travel, i.e., from the end of a cul-de-sac
to a house front (AF-24-25; Tr. 203).
Appellant had no authority to permit the relocation of boxes on his
route (Tr. 67-70; AF-24).
11. During the period of Appellant's contract,
physical contact in the form of bumping occurred between Appellant and the
Kitty Hawk Postmaster in the interior of the Post Office when they were casing
the mail. These instances of bumping,
which the Postmaster believed to be initiated by Appellant, occurred four or
five times. The Postmaster was of the
opinion the bumpings were intentional acts of
intimidation but were not sexually prompted or oriented (AF-33; Tr. 16-17, 48-49, 62). The Postmaster never discussed the bumping
incidents with Appellant (Tr. 61).
12. The interior of the Kitty Hawk Post Office
was very small and cramped with 11-13 Postal Service employees and contract
"employees" working together (Tr. 18, 49, 81, 175, 219). Due to the small and cramped quarters in which
these employees worked bumping and brushing against each other often occurred
(Tr. 50, 81, 97, 175, 219).
13. On October 9, 1991, a clerk and safety
officer at the Kitty Hawk Post Office gave a presentation on sexual harassment
to contractors and Postal Service employees working at the Post Office at the
request of a female contractor, Ms. Francis, who believed that one of her
substitute carriers was being intentionally bumped by Appellant (AF-33; Tr.
226-28). At that time the Postmaster
observed Appellant bump into Ms. Francis. In a subsequent conversation between the
Postmaster and Ms. Francis, Ms. Francis advised the Postmaster that she (Ms.
Francis) and others were being bumped intentionally by Appellant (Tr. 19-23;
AF-33).
14. On October 9 and 10, 1991, the Postmaster
telephoned Postal Service higher management and relayed the information
pertaining to the perceived intentional bumping by Appellant. She was advised
that a Postal Service equal employment opportunity investigator would
investigate the matter and was told not to speak to Appellant about it (Tr.
24-25; AF-33).
15. The investigator interviewed the Postmaster,
Ms. Francis, and two other females who were substitute drivers. The latter three advised the investigator
that Appellant had made untoward sexual comments to them and had intentionally
rubbed or bumped against them. Ms.
Francis and one of the substitutes never confronted Appellant nor voiced any
objections to him pertaining to his actions (Tr. 86, 116, 130-34; AF-33). The other substitute specifically conveyed
her displeasure to Appellant as to his sexual comments, which she found
offensive, and no further comments of that nature were made by Appellant to her
(Tr. 86-91). However, incidents of
bumping occurred thereafter (Tr.93). No mention of these actions was made by these
individuals to the Postmaster until her discussion with Ms. Francis on October
9, 1991 (Tr. 19, 87, 116; AF-33). One
substitute driver who worked for Appellant resigned primarily because Appellant
was not paying her in a timely manner, but also because of the bumping and
sexual comments made to her which she found intimidating (Tr. 115, 120-24). The
other substitute driver who worked for Ms. Francis resigned her position
because of Appellant's actions (Tr. 85-90; AF-33).
16. The Postal Inspection Service thereafter
conducted an investigation of Appellant's actions. In addition to those previously interviewed (Finding
of Fact No. 15) three additional female substitute contract drivers and one
female contractor were interviewed and all charged that Appellant had either
intentionally brushed against them or bumped them. Two of the drivers related that Appellant had
used vulgar or inappropriate language to them (Tr. 75, 96; AF-33). The record does not indicate that Appellant
was directly confronted by any of the three substitutes pertaining to his
actions, nor did they bring these
matters to the attention of the Postmaster until after October 9, 1991 (AF-33;
Tr. 75, 96). The female contractor who
was interviewed was bumped once by Appellant, but after she admonished him, she
was never again bumped by him (Tr. 105).
17. Those interviewed by the equal employment
opportunity investigator and the Postal
Inspector believed Appellant's actions created a hostile or abusive work
environment (AF-33; Tr. 76-77, 85-87, 97, 116-17).
18. It was not unusual for off-color, vulgar, or
inappropriate language or jokes of a sexual matter to be related on the
workroom floor of the Kitty Hawk Post Office.
Both male and female workers participated in these exchanges (Tr. 86, 95, 98, 127-28, 176, 219).
19. On November 5, 1991, the Transportation
Management Service Center (TMSC), Landover, MD,
Contracting Officer by certified letter denied Appellant access to the mail
"as a result of charges of sexual harassment [sic] filed against
you." Appellant was asked to turn in his identification badge, but was
"reminded that this action does not relieve you of the obligations you
assumed when awarded this contract. . . ." (AF-10).
20. Subsequent to Appellant being denied access
to the mail (and the Kitty Hawk Post Office) a substitute driver unfamiliar
with Appellant's route performed the route alone. During the period of November
20, 1991, to December 20, 1991, there
were several instances of misdelivered mail but no Form
5500's were issued to Appellant (AF-26-32).
21. The Postal Inspectors thereafter prepared a
report dated December 10, 1991. The
report only contained information and statements from those who stated that
Appellant was touching, bumping, or sexually harassing them. Other females who worked in the Kitty Hawk
Post Office were interviewed and had encountered no untoward actions by
Appellant. Factual information as to
these interviews was omitted from the
Inspectors' report (Tr. 146-47, 159-163). In fact five other females who worked at the
Kitty Hawk Post Office at the same time as Appellant neither observed nor
encountered any such actions (Tr. 196).
22. On December 17, 1991, the TMSC
Contracting Officer notified Appellant in writing that his contract was
terminated for default pursuant to clause 16(a)(7) of the contract's General
Provisions (supra). According to the
letter the decision to terminate was based upon "the sexual harassment
[sic] charges filed against you," as discussed in the findings of the Postal
Inspection Service investigative memorandum (AF-11). Appellant thereafter appealed the termination
action (AF-12).
DECISION
Respondent,
as the party that initiated the default termination, has the burden of
demonstrating that the termination was proper.
Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987).
Respondent contends the termination action was proper on several
grounds. Initially, Respondent argues
that Appellant's actions toward female workers at the Kitty Hawk Post Office
supported the determination that he was of poor character, thereby justifying
the termination. Next Respondent contends that Appellant's alleged offensive
and intimidating actions constituted major irregularities, as defined in
Respondent's Procurement Manual, thereby supporting the termination. Respondent
also alleges Appellant's actions violated Postal Service standards of conduct
on Postal property and violated federal employment law. Finally Respondent contends that Appellant's
contract performance was sufficiently deficient to require a termination. For this latter contention Respondent relies
on those instances of irregularities described in Findings of Fact Nos. 6-10
and 20.
Appellant
contends the termination action was improper because the investigative report
relied upon by the Contracting Officer as the basis for the termination action
was flawed, incomplete and biased. In
this regard Appellant vigorously attacks the report for failing to include any information
for the Contracting Officer to consider that five other females who worked at
the Kitty Hawk Post Office who were interviewed had no knowledge of any
offensive actions committed by Appellant, nor had they themselves encountered
any such actions. Appellant also
complains that the report was incomplete as it failed to contain any reference
to an ancillary complaint about a kick-back received by Appellant, which was
subsequently found to be absolutely untrue.[1] Finally, Appellant argues that his actions
were not extraordinary, that a pervasive atmosphere of crude language and
exchange of sexual jokes existed at the Kitty Hawk Post Office, and that
bumping between individuals often occurred due to the cramped working space.
Sexual
harassment, the primary basis for the termination action, is defined as conduct
that is severe or pervasive enough to create an objectively hostile or abusive
work environment - one that a reasonable person would find hostile or abusive. Harris
v. Forklift Systems, Inc., ___ U.S. ___, 62 L.W. 4004,
1993 U.S. Lexis 7155 (November 9, 1993).
"[W]hether an environment is 'hostile' or
'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Id.
The
evidence presented by Respondent pertaining to Appellant's actions establishes
that his conduct created an objectively hostile or abusive work
environment. Seven females, either
contractors or drivers, charged that Appellant had either intentionally brushed
against them or bumped them. These instances of bumping and touching were not
isolated. The rubbing and bumping,
coupled with Appellant's vulgar or inappropriate language, created a work
environment that these individuals felt was hostile. These actions caused tension in the
workplace and affected the ability of the these individuals to do their
work. In fact, one substitute driver
resigned her position solely because of Appellant's actions. While it is true
that the working quarters were cramped, and some bumping between individuals
(including Appellant) accidently occurred, the
frequency of Appellant's actions cannot reasonably or objectively lead to the
conclusion that they were accidental. Nor does the fact that off-color, vulgar
or inappropriate language or jokes were often heard on the workroom floor
diminish Appellant's actions. Some of
those that he bumped were offended or intimidated by his remarks directed
specifically to them (FOF No. 15).
Appellant's
conduct impeded or disturbed the Postal employees, including contractors, in
the performance of their duties and thus violated Postal Service regulations
pertaining to conduct on Postal property (FOF No. 4),
and the "Laws and Regulations Applicable" clause of the contract (FOF No. 2). Accordingly,
sufficient grounds existed for termination of his contract under clause
16(a)(2) of the general provisions (FOF No. 2). Pascal Redfern,
PSBCA No. 1512, 87-1 BCA P
19,646; Eddy M. Acevedo, PSBCA No. 3217, 93-1 BCA ¶ 25,493.
The
Contracting Officer terminated Appellant's contract pursuant to clause 16(a)(7)
of the contract's General Provisions for not being of good character. The reference to 16(a)(7), rather than
16(a)(2), is not significant however, as the underlying basis for the
termination was the sexual harassment actions of Appellant which violated both
postal regulations and Appellant's contract.
It
is of no consequence that those offended and/or harassed by Appellant's actions
with limited exceptions did not confront Appellant and demand that he
cease. Appellant is an intimidating
person with an aggressive personality, which factors undoubtedly kept personal
confrontation by others to a minimum.
As
Appellant contends, the investigative report, prepared by the Postal Inspectors
was, at least somewhat, incomplete. Nevertheless, the described incidents
clearly supported the determination of sexual harassment.
Appellant's
contract was properly terminated for default for the reasons stated above. It is therefore unnecessary to address
Respondent's other contentions in support of the termination. The appeal is denied.
James
D. Finn, Jr.
Administrative
Judge
Vice
Chairman
I
Concur:
James
A. Cohen
Administrative
Judge
Chairman
I
Concur:
David
I. Brochstein
Administrative
Judge
Board
Member