August 15, 2000
Appeal of
THOMAS A. GRAFFORD
Under Contract No. HCR 69186
PSBCA No. 4345
APPEARANCE FOR APPELLANT:
Thomas A. Grafford
APPEARANCE FOR RESPONDENT:
Cary L. Katznelson, Esq.
OPINION OF THE BOARD
Appellant has appealed the termination for default of his contract for the transportation of mail. As elected by the parties, the appeal is being decided on the record. 39 C.F.R. §955.12.
1. On April 30, 1998, Respondent, United States Postal Service, renewed its contract with Appellant, Thomas A. Grafford, for the delivery of mail between the Keystone and Arthur, Nebraska post offices. The contract required Appellant to case mail in the Keystone Post Office before departing for his route and after he completed deliveries. Appellant had performed the route for at least 15 years before the renewal, which was for the term July 1, 1998, through June 30, 2002. (Appeal File, Tabs (“AF”) 1, 6 (p. 82), 11 (p. 219); Declaration of Richard Chancellor; Complaint).
2. The contract authorized the contracting officer to terminate Appellant’s right to perform the contract if Appellant “has been administratively determined to have violated Postal laws and regulations and other laws related to the performance of the service” or “is not reliable, trustworthy or of good character.” (AF 1, Contract Clauses H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified) and H.5, EVENTS OF DEFAULT (Clause B-69) (January 1997), Sections b and g).
3. The contract provided,
“This contract and the services performed under it are subject to all applicable federal, state, and local laws and regulations. The supplier [Appellant] shall faithfully discharge all duties and obligations imposed by such laws and regulations. . . .” (AF 1, Contract Clause H.19, LAWS AND REGULATIONS APPLICABLE (Clause B-80) (January 1997)).
4. Postal Service regulations governing conduct on postal property provide, at 39 C.F.R. §232.1 (e),
“(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 impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited.”
5. On October 20, 1998, Appellant returned to the Keystone Post Office after delivering mail. The only other person in the post office at that time was the postmaster relief (“PMR”), who was filling in for the postmaster. Appellant walked up behind her and, in an action he knew to be unwelcome, touched the PMR inappropriately. The PMR did not report the incident immediately, because she did not want to cause trouble, but on October 23, she called the postmaster and told her she was going to quit. In discussing her reasons for doing so, she mentioned the incident of October 20. (Declaration of Patt Lapp; AF 6 (pp. 81, 87)).
6. Appellant had previously made repeated inappropriate and unwelcome comments of a sexual nature to the PMR and had otherwise interfered with her work by, for example, making her uncomfortable by purposely standing too close or leaning into her space while she was working. She told him on several occasions to stop it, and he had been specifically directed by the postmaster to leave the PMR alone. (AF 6 (pp. 79, 80-81, 87-88); Declaration of Patt Lapp; Declaration of Mary Bieber).
7. Before the PMR began working in the Keystone Post Office, Appellant had engaged in similar sexually harassing conduct toward the postmaster, who eventually formally directed him to stop such conduct and to refrain from touching anyone in the post office (AF 6 (pp. 78-79, 82-83, 88)).
8. Preliminary information on the events of October 20 was brought to the attention of the contracting officer, who, on October 30, 1998, suspended Appellant’s performance while an investigation into the circumstances could be conducted (Declaration of Robert J. Saxton; Declaration of Patrick M. Cullen; AF 2, 11 (p. 219)).
9. On December 11, 1998, after reviewing the information and witness statements obtained in the investigation, the contracting officer terminated Appellant’s contract for default. The final decision terminating the contract cited as the basis Appellant’s violation of Postal laws and regulations and other laws related to performance of the service. (AF 3; Declaration of Richard Chancellor).
10. Appellant filed a timely appeal of the termination.
Appellant has not denied the earlier inappropriate comments of a sexual nature and other harassing conduct toward both the postmaster and the PMR while they worked. He admits some physical contact with the postmaster and that he was directed not to touch anyone in the post office. However, in his statement submitted in this proceeding, he denies that he touched the PMR on October 20, 1998. We find the PMR’s statement in this regard more credible than Appellant’s. In an October 26, 1998 interview with a Postal Service manager regarding the October 20 incident, Appellant conceded he might have touched the PMR on the shoulder because she appeared to be having a bad day, but he later denied doing so. He then advised the interviewer that he could not have done what he was accused of because he was sick the Saturday it occurred. When it was pointed out that October 20 was a Tuesday, Apellant then stated that he had been sick Tuesday through Saturday, although work records indicate he was present every day.
On the other hand, the PMR was consistent throughout the several interviews in which she was asked to recount the events of October 20. Also, Appellant’s conduct on October 20 was consistent with his pattern of past behavior. Even the touching on the shoulder that Appellant initially conceded would have been in knowing violation of the specific directions given to Appellant that he refrain from any touching of employees in the post office.
Appellant’s conduct was inappropriate, in violation of specific instructions he had been given, and he knew it to be unwanted by the PMR. It interfered with the PMR’s performance of her duties and was a reason for her giving notice of an intention to quit her job. This violation of Postal Service regulations governing conduct on post office premises (Finding 4) was a breach of Appellant's contractual duty to comply with such regulations (Finding 3) and justified termination under Section b of Clause H.5 of his contract (Finding 2). See Robert Earl Lanier, PSBCA No. 3143, 94-2 BCA ¶ 26,693; Eddy M. Acevedo, PSBCA No. 3217, 93-1 BCA ¶ 25,493.
The appeal is denied.
Norman D. Menegat
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman