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February 3, 1983

MYRON G. FINEMAN, Plaintiff,
UNITED STATES POSTAL SERVICE, MERIT SYSTEMS PROTECTION BOARD, EUGENE F. GUZZI and FRANK J. VIOLA, individually and as employees of the United States Postal Service, and their assigns or successors in office, Defendants

The opinion of the court was delivered by: WEINFELD


 Plaintiff was removed from his position with the defendant, United States Postal Service ("Postal Service" or "Service") as a Mail Processing Equipment and Maintenance Mechanic ("MPE") upon a charge of continuing absence from duty without official leave. The decision was affirmed following a hearing upon plaintiff's administrative appeal by the Federal Employees Appeals Authority ("FEAA") of the United States Civil Service Commission ("Appeal Board"). *fn1"

 Plaintiff by this action, wherein in addition to the Service and the FEAA he named as defendants his supervisors (collectively "defendants"), seeks judicial review of the Postal Service decision to terminate him. He seeks (1) reinstatement, (2) back pay and (3) other related relief. The parties cross move for partial summary judgment on items (1) and (2) pursuant to Fed. R. Civ. P. 56 based upon the administrative record.

 Plaintiff commenced his employment with the Postal Service in May 1974 in the capacity described above. In 1977 he underwent a series of surgical procedures. As a result of his hospitalization and convalescence he did not work for a considerable period. During this time he was granted various sick leaves upon compliance with Postal Service regulations. These required him to submit with his request a Leave Authorization Form every thirty days, a certificate from his personal physician stating the nature of his illness and operations and the reasons for his requested sick leave. *fn2"


 Plaintiff returned to his job in the fall of 1977 and, based upon a note from one of his surgeons that he was to "refrain from heavy duty [work] for the next three months," *fn3" requested and was assigned to light duty in November 1977 in the mail processing department, which was not his regular department. On May 17, 1978, plaintiff submitted a written request to be assigned to light duty within his regular craft. By letter dated the same day, Eugene F. Guzzi, the manager of the Mail Processing Department at the Bronx Post Office Facility where plaintiff was employed, advised plaintiff that his request must be supported by the required medical statement from a licensed physician. Plaintiff was then further advised that:

Light duty may be granted on tours where such assignments are available. Should you fail to comply with the above or there is insufficient Light Duty assignments, you must take Annual, Sick or Leave Without Pay until you are fully recovered and able to perform your assigned duty, including work week tour. *fn4"

 Several days thereafter plaintiff submitted the required medical statement. *fn5" On May 24, 1978, Guzzi approved plaintiff's request for light-duty assignment in his regular craft and he was ordered to report on May 30, 1978 to Mrs. Roberta Mack, Superintendent, Building Maintenance, at the Bronx General Post Office.

 The basic issue to be decided upon these cross motions rests essentially upon events commencing on May 30, 1978, when plaintiff reported to Mrs. Mack. This observation is made since both at the administrative appeal hearing and on this motion plaintiff and his counsel discursively digress from the basic charge which led to his dismissal -- to wit, that he was "continuously absent from duty without permission since June 1, 1978" and had not submitted "a properly documented Medical note" or "reported for work as ordered." *fn6"


 On May 30, upon reporting to Mrs. Mack, plaintiff was assigned to dry mop the work floor with a group of other employees, but he refused, stating that he was supposed to get an office assignment. He did not accept the assignment but consulted with his union delegate. It is undisputed that he did not work that day. *fn7"

 The next day, May 31, he reported late for work and, as on the previous day, was instructed by his supervisor to sweep the floor with a dry mop. After working a short period, plaintiff complained about dizziness and of his hand shaking. His supervisor directed him to the Medical Unit where a doctor examined plaintiff and certified that he was fit for light-duty assignment. Upon reporting back to his supervisor, he was instructed to continue with light-duty assignment. Although there is a difference between the supervisor and the plaintiff as to the nature of the assigned duty, the fact is that he did not perform any work the rest of the day.

 Plaintiff did not report for duty the next day, June 1. Instead, he telephoned the Postal Service timekeeper and requested leave without pay. In response, the Postal Service sent plaintiff the usual leave absence form, P.S. Form 3971. It was the same form which plaintiff had submitted on his prior applications for leave which had been granted. It instructs the employee that he is required to submit a medical certificate signed by a doctor

giving diagnosis, prognosis, dates of treatment and probable date of return, or satisfactory evidence substantiating absence, or report for duty at once. Failure to comply with above instructions within seven (7) days of your receipt of this letter will result in recommendation for your removal from the ...

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