May 26, 2004
Appeals of
DEBRA K. WILLIAMS
Under Contract No. SW-02-AR-2
PSBCA Nos. 5025 and 5090
APPEARANCE FOR APPELLANT:
Debra K. Williams
APPEARANCE FOR RESPONDENT:
Judith K. Zehner, Esq.
OPINION OF THE BOARD
Appellant, Debra K. Williams, has appealed from the termination of her medical services contract and from the denial of her request for reimbursement of travel and training expenses incurred after her contract was terminated. At Appellant’s election, the appeals have been considered under the Board’s accelerated procedure, 39 CFR §955.13. On April 28, 2004, a hearing was held in Little Rock, AR. In accordance with 39 CFR §955.13(d)(3), the Board, with the concurrence of both parties, orally issued the following summary findings and conclusions on the record.[1]
FINDINGS OF FACT
1. On or about November 15, 2002, the Postal Service entered into Medical Agreement No. SW-02-AR-2 (hereinafter “contract”) with Appellant for a two-year term beginning January 13, 2003, at an annual rate of $64,480.00 (Appeal File, Tab (AF) 1, pp. 1 & 5).
2. The contract provided that “[e]ducational and professional development opportunities may be provided with approval of the Human Resources Manager. Any required travel will be reimbursed in accordance with rates and allowances set forth in Handbook F-10, Travel Policy.” (AF 1, p. 5).
3. The contract also provided that the Postal Service could terminate the contract at any time upon 30 days written notice (AF 1, pp. 2 & 5).
4. During the course of the contract, the Postal Service received complaints about Appellant’s attitude, professionalism and lack of responsiveness (see Supplemental Appeal File, Tabs (SAF) 7-10; Transcript (Tr.) 32-36, 98-101, 111-16, 130-33, 184, 187). The complaints did not relate to Appellant’s medical competence (Tr. 90, 95). The complaints were brought to the attention of the contracting officer who determined the contract should be terminated on 30 days written notice (Tr. 76-80).
5. On April 30, 2003, the contracting officer issued a final decision terminating Appellant’s contract effective May 30, 2003 (AF 2, p. 6). The final decision was hand delivered to Appellant on April 30, 2003, by the Arkansas District Acting Human Resources Manager and the Acting Manager of Labor Relations (SAF 11, p. 35). At the Postal Service’s instruction, Appellant did not perform any work for the Postal Service after April 30, 2003, but she was paid the amount she would have earned had she worked through May 30, 2003 (SAF 2, pp. 17-18; SAF 3, pp. 19-20; Stipulations (Stip.) 7 & 8).
6. At the time Appellant was given the contracting officer’s final decision she was orally advised that she was no longer a representative of the Postal Service and that she would be responsible for any costs associated with any travel and/or training in which she participated thereafter (SAF 11, pp. 35, 37 & 41; Tr. 160-61, 192).
7. Appellant filed a timely appeal from the April 30, 2003 contracting officer’s final decision (AF 3, p. 8). That appeal was docketed as PSBCA No. 5025.
8. In June 2003, Appellant requested that Respondent reimburse her for $1,614.83 in travel and training expenses she incurred in May 2003. (SAF 4, p. 21; SAF 11, pp. 38-40, 42). Specifically, Appellant submitted a receipt dated May 1, 2003 for $59.00 for her attendance at a class that same date, which had previously been rescheduled from February 2003 due to bad weather, and $1,555.83 for her attendance at a conference held on May 5-9, 2003 (id.).
9. Respondent returned the claims to Appellant unpaid, stating that Appellant was no longer a representative of the Postal Service at the time she attended the class and conference and, therefore, was not entitled to reimbursement (SAF 11, pp. 37 & 41).
10. On October 31, 2003, the contracting officer issued a final decision in which he denied Appellant’s claims for reimbursement of travel and training expenses (SAF 11, pp. 35-36).
11. Appellant filed a timely appeal from the October 31, 2003 contracting officer’s final decision. The appeal was docketed as PSBCA No. 5090 and consolidated with PSBCA No. 5025 for further processing and decision.
12. Subsequent to her termination, Appellant filed two Equal Employment Opportunity (EEO) complaints, alleging discrimination based on race, gender and retaliation for a prior EEO complaint. The Postal Service’s EEO office consolidated the complaints and accepted the claims of racial discrimination and retaliation for investigation (SAF 12, pp. 44-49; Stip. 12).
OPINION
Appellant alleges that the termination of her contract was racially motivated and the result of her prior EEO complaint and that she is entitled to reimbursement for the travel and training expenses she incurred. Respondent argues that the contract was not terminated because of Appellant’s race or in retaliation for her prior EEO complaint and that Appellant received all of the compensation she was entitled to under the terms of her contract.
Under the termination provision of Appellant’s contract (Finding 3), the contracting officer had broad discretion in determining whether to terminate the contract and the decision of the contracting officer will not be disturbed unless it is exercised in bad faith or constitutes an abuse of discretion. Fantastique’ Ultimatique’ Nautique’, PSBCA No. 3652, 96-1 BCA ¶28,150; E. Gerald Hanes, PSBCA No. 3082, 92-3 BCA ¶25,127; Sebastian Providente, PSBCA No. 2479, 90-2 BCA ¶22,894. Respondent provided Appellant the 30 days written notice required by the termination provision and paid Appellant for the 30 day period she was not allowed to work (Finding 5).[2] The contract was terminated because of complaints received by Postal Service officials about Appellant’s lack of responsiveness, her attitude and her lack of professionalism (Finding 4). Those complaints were brought to the attention of the contracting officer, who relied on the information he was provided in deciding to terminate Appellant’s contract (id.). Thus, on the record presented, the Board is unable to find that Appellant has presented clear and convincing evidence of bad faith on the part of the contracting officer or any other Postal Service official,[3] that the contracting officer abused his discretion by terminating Appellant’s contract on 30 days notice or that the decision to terminate Appellant’s contract was racially motivated or in retaliation for the prior EEO complaint she had filed.[4]
Moreover, Appellant is not entitled to reimbursement for the travel and training expenses she incurred in May 2003. We are persuaded that Appellant was advised on April 30, 2003, that she no longer represented the Postal Service and that Respondent would not reimburse her for any travel or training expenses incurred thereafter (Finding 6). Although Appellant contends she paid for the May 1, 2003 class prior to the termination of her contract, the contemporaneously issued receipt showing payment for the class is dated May 1, 2003 (Finding 8), the day after her contract was terminated. Additionally, Appellant has presented no other persuasive evidence establishing that she incurred an obligation to pay, or did pay, any expenses for her attendance at the class or the conference prior to the date of termination. Appellant argues the Postal Service could not rescind any previously granted approval for travel and training, but the contract right of approval inherently includes the right of disapproval prior to the incurrence of any costs. As Appellant was told she would be responsible for any travel or training costs incurred after the termination of her contract, it was not reasonable for her to expect reimbursement from Respondent for the May 1, 2003 class or the May 5-9, 2003 conference. Accordingly, we see no basis for granting Appellant’s claim for those expenses.
The appeals are denied.
James A. Cohen
Administrative Judge
Chairman
[1] As required by 39 CFR §955.13(d)(3), this is a typed copy of the oral decision issued at the hearing, which is being furnished to the parties for record and payment purposes and to establish the date of commencement of the period for filing a motion for reconsideration under 39 CFR §955.30. The typed copy of the decision has been edited to include appropriate citations to the record and legal authorities as well as to provide a more complete summary of the facts and clarification of the decision reached at the hearing.
[2] Appellant argues she was not notified her performance was unsatisfactory or given an opportunity to correct the deficiencies. The contract did not require Respondent to notify Appellant of the deficiencies in her performance or to give her an opportunity to cure those deficiencies.
[3] See Am-Pro Protective Agency, Inc., 281 F.3d 1234, 1239 (Fed. Cir. 2002) (establishing that clear and convincing evidence is the standard of proof to overcome the presumption of good faith on the part of the government).
[4] Appellant failed to meet her initial burden of establishing a prima facie case that her termination was based on racial discrimination or in retaliation for a prior Equal Employment Opportunity (EEO) complaint. Furthermore, the Postal Service offered legitimate nondiscriminatory reasons for the termination and no showing has been made that those reasons were a pretext for racial discrimination or in retaliation for the prior EEO complaint filed by Appellant. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).