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September 29, 1997

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

The opinion of the court was delivered by: HURD


 The plaintiff, Gerard G. Pendas, Jr. ("Pendas" or "plaintiff"), filed a complaint on August 5, 1994, alleging that the defendant, Marvin T. Runyon, Postmaster General ("post office" or "defendant"), discriminated and retaliated against him in violation of the Age Discrimination Employment Act ("ADEA") pursuant to 29 U.S.C. ยง 261. Plaintiff also alleges that he was constructively discharged from his employment with the United States Postal Service. The defendant in an answer denied all of the material allegations in the complaint.

 On April 15, 1996, the defendant filed a motion for summary judgment. Consequently, the claims for compensatory damages, liquidated damages, a jury trial, prejudgment interest, and attorney's fees were stricken from plaintiff's amended complaint. Otherwise, the motion was denied. At trial, issues of fact remained regarding the plaintiff's claims for back and front pay. Pendas v. Runyon, 933 F. Supp. 187 (N.D.N.Y. 1996). Familiarity with the prior decision is assumed.


 A bench trial was conducted in 1997 on March 3, 4, and 5, in Albany, New York. The plaintiff testified in his own behalf, together with a co-employee, Richard P. White, and his current attending physician, Dr. Michael J. Gardner ("Dr. Gardner"). The witnesses for the defendant included postal employees Reginald J. Poulin, Anna Schubert, Robin Shaw, Margaret M. Lynch, Robert E. Matarese, Thomas P. Cunningham, John R. Reilly, Martha MacDonald, and Dennis J. Loehner. The defense also called the plaintiff's original attending physician, Dr. Richard E. Lavigne ("Dr. Lavigne"), and their examining physician, Dr. William Rogers ("Dr. Rogers"). Voluminous exhibits were also received into evidence.

 Stipulation of records and facts and an Addendum were filed on March 7, 1997. Supplemental proposed findings of facts and conclusions of law were filed on May 9, 1997. Based upon the stipulations, all of the evidence, and the credibility of the witnesses, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


 The following facts are those pertinent to the issues raised in the pleadings. Additional facts are set forth in the prior decision. 933 F. Supp. at 189-91.

 Born on June 12, 1930, the plaintiff was hired in September of 1980 by the United States Postal Service as a special delivery messenger for the postal district of Albany, New York. As a part-time flexible employee, the plaintiff worked flexible hours and was obviously not considered a regular full-time employee. In fact, pursuant to the applicable bargaining agreement, part-time flexible employees were not guaranteed any hours of work in a given week.

 In 1988, plaintiff initiated contact with an EEOC counselor/investigator alleging age discrimination. However, his informal complaint was settled. In 1990, plaintiff again contacted an EEOC counselor/investigator. Nevertheless, on December 7, 1990, the plaintiff withdrew his informal complaint.

 On December 29, 1990, plaintiff was converted from a special delivery messenger to a city letter carrier. This was still a part-time flexible position.

 From approximately October 1, 1991, to February of 1992, the plaintiff was out of work as a result of heart by-pass surgery. Upon his return, he was placed in a temporary light duty position by supervisor Peg Lynch. Thereafter, on numerous occasions during the summer of 1992, Ms. Lynch inquired of Pendas whether or not he was going to retire.

 Plaintiff's original physician with regard to his physical condition and limitations, provided medical reports to the post office on February 20, 1992, and May 22, 1992, which restricted Pendas to day time work, or work between 8:00 a.m. to 6:00 p.m. (Pl.'s Ex. 11 and 12). However, on August 24, 1992, plaintiff submitted a report pursuant to a form provided by the post office failing to indicate Dr. Lavigne's day time restriction. It was later indicated that this was an oversight on the doctor's part because the form contained no place for such information. (Pl.'s Ex. 13).

 On October 25, 1992, area manager of stations Dennis Loehner, accompanied by Martha McDonald, Pendas' supervisor at that time, ordered that he start work at 4:00 a.m. and continue for four hours beginning on October 28, 1992. The following day, Ms. Lynch telephoned plaintiff's physician to see if the plaintiff could work at that early morning hour without any harm to his health. Caught off guard, Dr. Lavigne without reviewing his records, stated that Pendas could work starting at 4:00 a.m. Regardless, the plaintiff refused to report to work at 4:00 a.m. In fact, he subsequently changed doctors, and on November 11, 1992, Pendas was examined by Dr. Gardner. Dr. Gardner filed a report with the post office in which he opined that it would be detrimental to the plaintiff's health to report to work at 4:00 a.m. and that he "should be given working daytime hours," preferably between 8:00 a.m. and 6:00 p.m. (Pl.'s Ex. 17).

 On December 8, 1992, the plaintiff was examined by Dr. Rogers on behalf of the defendant. Dr. Rogers concluded that the plaintiff was medically fit to report to work at 4:00 a.m.

 On December 9, 1992, the plaintiff filed an informal complaint with the EEOC in which he stated as follows:

Age and disability Dennis Loener [sic] has violated the letter from my medical doctor, and has through Peg Lynch ...

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