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July 11, 1996

GERARD G. PENDAS, JR., Plaintiff,
MARVIN T. RUNYON, Postmaster General, Defendant.

The opinion of the court was delivered by: HURD

 Presently before this court is the defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56, and defendant's motion to strike the amended complaint. Oral argument was heard in this matter on May 13, 1996, in Utica, New York. During oral argument and within the written submissions to the court, plaintiff conceded that his requests for a jury trial, compensatory damages, liquidated damages, prejudgment interest, and attorney's fees are not available to federal employees suing the federal government under the ADEA. Pendas submits, however, that he is entitled to back pay and possibly front pay.


 The following description of the facts of this case are taken from the submissions of both parties. When there are conflicts of fact, the court views the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Plaintiff was born on December 12, 1930. Pendas worked for the United States Postal Service ("Postal Service") from September of 1980 to December 1, 1993. When Pendas began working at the Postal Service, he was a part-time flexible (PTF) special delivery messenger. Being a PTF employee in the Postal Service does not carry with it any guarantee of work during any specific time, but rather only guarantees a minimum number of hours in a given week only when the individual is called in to work. Pendas was represented by the American Postal Workers Union (APW).

 In 1988, Pendas contacted an Equal Employment Opportunity (EEO) counselor and brought a claim against the defendant alleging that he was improperly being denied the ability to deliver express mail, that the position of special delivery messenger was being improperly eliminated, and that he should be given full-time status. That claim was settled. In 1990, plaintiff again complained to an EEO counselor making claims similar to the 1988 action, and also alleging that the defendant was violating a 1989 pre-arbitration settlement. On December 7, 1990, Pendas withdrew this complaint.

 On December 29, 1990, plaintiff was converted from a PTF special delivery messenger to a PTF city letter carrier because the special delivery messenger classification was being eliminated. The plaintiff's union was opposed to this action, but did not succeed in preventing the positions from being eliminated. It is at this point in time, defendant argues, that the plaintiff's time to object to the elimination of the special delivery messenger accrued. Defendant contends that Pendas failed to file an EEO complaint within thirty days as required.

 Shortly after being converted to a PTF city letter carrier, on January 6, 1991, plaintiff fell and injured himself. It is unclear whether Pendas ceased working during this time or if he was placed on limited work duty, or some combination of both. Plaintiff filed a grievance regarding sick leave hours granted by the Postal Service. Pendas claimed that he was entitled to more hours of sick pay than he was given.

 On October 25, 1992, Pendas was notified that he was being assigned to the "carrier craft" consisting of a four hour day beginning at 4:00 a.m. Dr. Lavigne was contacted and asked whether or not he felt the plaintiff was capable of light duty work consisting of a four hour work day beginning at 4:00 a.m., and Dr. Lavigne stated that he believed that Pendas was able to work that shift. Plaintiff was slated to begin this new position on October 28, 1992, but he refused to comply citing his medical restrictions and physician recommendations. Plaintiff received a letter of warning for failing to follow instructions and failing to report to his assigned duties.

 Around this time, Pendas obtained a new physician, Dr. Michael J. Gardner, who recommended that Pendas not work before 8:00 a.m. and made similar recommendations as the other physicians concerning reaching, limits on standing and sitting, working above shoulder height and lifting only 20 pounds or less. Because of the discrepancies in medical opinions, defendant had Pendas see the postal contract physician, Dr. William Rogers, who found that he was capable of performing light duty work beginning at 4:00 a.m. Plaintiff received a seven day suspension for failing to report to work. Pendas then filed a grievance over the suspension and filed an informal complaint with an EEO counselor on December 7, 1992.

 In January 1993, plaintiff reached an oral agreement with Reginald Poulin, the Postmaster at Albany, New York, to resolve the EEO complaint. Plaintiff was promised a light work assignment, and his records were purged of the disciplinary actions taken against him. In addition, plaintiff received the extra sick pay to which he felt he was entitled stemming from his absence following his bypass surgery. Further, plaintiff was promised a job which would enable him to deliver express mail and to travel to local schools and set up post boxes for children. According to the plaintiff, he never received these positions and was placed in the Central Forwarding Unit, a position he contends was detrimental to his health because he had to sit for extended periods of time. As a result of what the plaintiff felt was a violation of the oral agreement, Pendas filed a formal EEO complaint on March 12, 1993.

 On August 7, 1993, Pendas was converted from PTF to a full-time city carrier with regular hours. Plaintiff contends that upon receiving full-time status, he was forced to work in a job that required him to stand for eight hours each day, which again, he finds detrimental to his health and physically impossible. Pendas notes that other less experienced and less qualified employees were given jobs which enabled them to walk, drive, and deliver mail, a combination of duties which he submits is the type of physical activity which his physician's recommended. Furthermore, the new position required him to begin work at 4:30 a.m. Once again, Pendas refused to report to work at 4:30 a.m. and received another letter of warning. Pendas alleges that he was forced to leave the position on December 1, 1993, because he was incapable of performing the work which he was given.

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