February 14, 1994
Appeal of
RICHARD LEWIS DANEL
Under Contract No. HCR 92346
PSBCA No. 3470
APPEARANCE FOR APPELLANT:
Richard Lewis Danel
APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
OPINION OF THE BOARD
Appellant, Richard Lewis Danel, has appealed the default termination of his highway transportation contract with the United States Postal Service, Respondent. At Appellant's request, this appeal is being processed under the Board's Accelerated Procedure, 39 C.F.R. § 955.36, and is being decided on the record. Only entitlement is in issue.
Based on the record in this appeal, we make the following findings of fact and conclude the termination was justified based on Appellant's theft of mail and his record of mishandling mail on his route.
Findings of Fact
1. On July 15, 1991, Appellant was awarded contract HCR 92346 for mail box delivery service from the Phelan, California, Post Office (Appeal File Tabs ("AF") 1, 2, 3).
2. The contract required Appellant to "carry all mail tendered for transportation under this contract, whatever may be its size and weight, with certainty, celerity, and security," to "[d]eposit all mail matter received for that purpose from a post office into the appropriate mail boxes of patrons placed along the line of the route," to "mark up and forward mail for patrons on the route who have filed a change of address order" and to "protect the mail from loss, depredation, or damage." (AF 1, Contract Section 13.E. and Basic Surface Transportation Services Contract General Provisions, PS Form 7407T, March 1989 ("GP") 4 (a), (b)(1)i, (b)(2) and (c); see AF 1, GP 8(c)).
3. The contract provided that the contracting officer could terminate the contract for default under the following circumstances:
"(1) For the 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;
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(7) If the Contractor ... is not reliable, trustworthy or of good character." (AF 1, GP 16 (a)(1), (2), (7)(c)).
4. Respondent provided Appellant at least the amount of training required under the contract, but from the beginning of the contract Appellant's delivery of the mail was unsatisfactory. Performance that failed to meet the contract requirements included delivery of mail to the wrong address, leaving mail on top of neighborhood delivery and collection box units ("box units"), delivering to the old address mail that was the subject of a forwarding order or mail hold order, returning deliverable mail to the sender, missing deliveries and delivering mail late. (Declaration of Susan J. Bruckler dated December 10, 1993 ("Bruckler Decl.") ¶¶ 5-17; AF 4-27).
5. After some improvement in performance during 1992, deficiencies increased in 1993. There were over 50 customer complaints of misdelivery in the first 6 months of 1993, many of which mentioned recurring or continual misdelivery in addition to the specific instance reported. The deficiencies included misdelivery, deliverable mail returned to sender, delay in delivery, leaving mail on top of box units, delivering mail to vacant compartments in box units, failure to meet dispatch, and delivery of mail to old addresses notwithstanding an effective forwarding order on file. (Bruckler Decl. ¶¶ 18-20, 22-25; AF 29-32, 35-36, 39-46, 48-53, 55-57, 59-64, 66-68). The postmaster regularly and promptly brought these failures to Appellant's attention (Id.).
6. The Phelan Postmaster recorded Appellant's performance deficiencies on PS Form 5500, Report of Contract Route Irregularity, on February 5, 16, 17, March 22, April 3, 5, 6, June 7, 14, 18, and July 9, 1993, with many of the 5500s covering several instances of misdelivered mail (AF 39-41, 46, 48, 49, 55, 56, 61, 63, 67, 68). In his response to many of the 5500s after the beginning of June, Appellant suggested that it could not be proved that he was responsible for the misdeliveries because a key to the box units had been stolen or duplicated, making it possible that someone else had access to the units (AF 55, 56, 61, 63). Other than his statements, there is nothing in the record to support his assertion that a key was in the hands of an unauthorized person or that any box units had been broken into (Bruckler Decl. ¶¶ 22, 23).
7. On May 28, 1993, the postmaster and Appellant's wife, who worked as a driver for Appellant, were involved in an argument at the post office. As a result of threats allegedly made by Appellant's wife during that argument, she was denied access to the mail until approximately June 18. (AF 53, 54, 58, 65).
8. On July 8, 1993, Appellant was given a supply of soap samples to be delivered on his route, along with a detached address label for each sample. Before leaving the post office for his route, he discarded nine of the detached labels, at least four of which he knew bore "good" addresses to which the samples could have been delivered. After completion of his route, Appellant knowingly took the nine samples home with him.[1]
9. Appellant had been advised in the past that he was not to take mail home, even undeliverable mail (AF 4, 70, 71 (Bruckler Statement, page 3)).
10. Upon discovery that Appellant had taken the soap samples from the mail, the postmaster suspended his performance and began performing the route herself. While doing so, the postmaster found 43 First Class letters that had been misdelivered into vacant compartments in a box unit on Appellant's route. Each letter had a good address on Appellant's route and was postmarked between February and July 6, 1993 (Bruckler Decl. ¶ 27; AF 72).
11. The postmaster recommended that Appellant's contract be terminated (Bruckler Decl. ¶ 28; AF 73). In a final decision dated August 2, 1993, the contracting officer terminated Appellant's contract for default, stating as the reason that Appellant had been found to have violated postal laws and regulations (AF 74). This appeal followed.
Decision
Respondent argues that the termination was justified because taking the nine soap samples constituted a violation of postal regulations and postal laws, specifically 18 U.S.C. § 1702, a criminal statute addressing theft from the mail. Respondent also argues that the theft establishes that Appellant is not trustworthy, and thus that termination was justified on that ground. Finally, Respondent argues that Appellant's unsatisfactory performance justified termination of the contract.
Appellant argues that his delivery errors early in the contract resulted from the failure of the postmaster to provide him the training specified in the contract and that those in 1993 could not be blamed on him because a key had been stolen or duplicated that allowed unauthorized persons access to the box units. He argues that the Phelan Post Office was badly managed and offered statements of postal employees in support of that contention. Finally, he urged that the postmaster only sought to terminate his contract because of bias and ill will toward his wife stemming from their May altercation.
Theft of mail, even mail of little value, is a serious breach of the specific requirements of Appellant's contract, and Appellant's taking of the samples impaired the trust placed in him to deliver the public's mail "with certainty, celerity and security." See Francis E. Fekkers, PSBCA No. 1259, 84-3 BCA ¶ 17,557 at 87,476. Therefore, Appellant's theft of the samples justified termination of his contract for default. See Bonnie Dolin, PSBCA No. 2394, 92‑2 BCA ¶ 25,014; James E. Norman, PSBCA No. 2967, 1991 WL 261248 (P.S.B.C.A.), November 26, 1991; Karen L. Wilson, PSBCA No. 1494, 86-3 BCA ¶ 19,256; Francis E. Fekkers, supra; Larry J. Bunker, PSBCA No. 1067, 83-1 BCA ¶ 16,542; William O. Ellard, PODBCA No. 5, 1960 WL 706 (P.S.B.C.A.), August 12, 1960.
Appellant presented no evidence that could excuse his theft of the soap samples. Postal laws and the contract unmistakably prohibit theft of mail. Appellant could not possibly have been unaware of this most basic duty of a mail delivery contractor, having agreed to the contract and having been specifically advised of the requirement on previous occasions.
Appellant's mishandling of mail constitutes a separate justification for the termination for default. The record reflects Appellant regularly mishandled mail intended for customers on his route. He was advised of his errors, yet the pace and variety of misdeliveries continued. These deficiencies, occurring over the entire life of Appellant's contract, demonstrate a material failure to meet the requirements of the contract that justified the termination.
Appellant's defenses to the termination do not excuse his delivery failures. Appellant received adequate training and assistance from the postmaster. Moreover, he has not shown how any lack of training at the inception of the contract in 1991 could have contributed materially to his mishandling of mail in 1992 and 1993, after more than a year on the job. Additionally, he had been told time and time again about the specific performance deficiencies that continued.
Appellant did not demonstrate that a key to the box units on his route had been stolen or duplicated. Moreover, it is incredible to think someone would have broken into the box units to mix up the deliveries. Further, unauthorized access to the units could have had no bearing on Appellant's returning deliverable mail to sender, delivery of mail for which a hold or forward order was in effect, and delays in mail delivery.
Finally, Appellant argued that the termination stemmed from the Phelan Postmaster's ill will toward him and his wife and that the post office was badly managed. He submitted witnesses' statements that he contends support these arguments. However, we need not make findings in this regard because Appellant has not shown any connection between the management of the post office or the conduct of the postmaster and Appellant's failure to perform according to the contract requirements.
The appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
[1] When interviewed on July 12, 1993, Appellant told the Postal Inspector he took the samples home inadvertently (AF 71). That statement is inconsistent with discarding the detached address labels and was contradicted by the statement of his wife, who helped on the route, that when they returned to the post office on July 8 she asked Appellant about the remaining samples and he told her to leave them in the car in case they were needed later (Declaration of S.B. Mauldin dated December 8, 1993 ("Mauldin Decl.") ¶ 5; AF 71). Moreover, his declaration made under penalty of perjury and filed in this appeal does not say he took the samples home inadvertently, but rather insists he did not intend to steal them. The samples were not in his car the next day, July 9, when the postmaster asked for them, and he told her he had them at home (AF 71, Sworn Statement of Susan Bruckler dated July 12, 1993 ("Bruckler Statement")).