The Honorable George F. Gunn, Jr., United States District

1

Judge for the Eastern District of Missouri.

_____________

No. 95-1843EM

_____________

Eric Crawford, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

Marvin T. Runyon, Postmaster * of Missouri.

General, United States Postal *

Service, *

*

Appellee. *

___________

 Submitted: March 21, 1996

 Filed: April 1, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and BEAM, Circuit Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

Eric Crawford appeals the District Court's entry of judgment for

1

defendant following a bench trial in this action arising from his discharge

from the United States Postal Service. We affirm.

Crawford, a former Postal Service employee, alleged that the Postal

Service discriminated against him in violation of section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. Crawford
-2-

claimed he was fired after his supervisors lied about alleged threats he

had made to hurt or kill his acting immediate supervisor, as part of a

campaign to have him terminated because of his depression and stressrelated mental disorders. After the District Court granted summary

judgment to defendant, we reversed on this claim, and remanded for a trial.

Crawford v. Runyon, 37 F.3d 1338, 1339, 1341 (8th Cir. 1994).

Before trial, the District Court struck Crawford's demand for a jury,

concluding that Crawford had no right to a jury trial. At the start of the

bench trial, the parties agreed that the only issue before the court was

whether Crawford made the threats; if he did, Crawford agreed defendant's

reasons for firing him would not be pretextual. At the conclusion of the

trial, the District Court found that Crawford had threatened his

supervisors, and that defendant's reason for discharging Crawford was not

pretextual.

We agree with the District Court that Crawford did not have a right

to a jury trial, because defendant was sued in his official capacity as a

representative of the United States. See 39 U.S.C. § 201 (Postal Service

is part of "Government of the United States"); Loeffler v. Frank, 486 U.S.

549, 562 n.8 (1988) (when head of Postal Service acts in official capacity,

he acts in name of Postal Service); Lehman v. Nakshian, 453 U.S. 156, 160-

61, 168 (1981) (Seventh Amendment right to jury trial does not apply

against federal government, and plaintiff has right to jury trial "only

where Congress has affirmatively and unambiguously granted that right by

statute").

Given the parties' stipulation regarding pretext, only the District

Court's factual findings on whether Crawford actually threatened his

supervisors need be reviewed. The Court's findings were not clearly

erroneous. Each of three supervisors testified that he or she heard

Crawford make a threatening statement directed towards his acting

supervisor on the relevant dates. Furthermore,
-3-

Crawford's own testimony shows that on each of these dates he made

statements which were either directly threatening to his acting supervisor,

or could reasonably be perceived as threatening to his acting supervisor

or other supervisors.

Finally, we deny Crawford's motion to supplement the record. The

material he offers is presented for impeachment only, which should have

been done at trial. See Dakota Indus., Inc. v. Dakota Sportswear, Inc.,

988 F.2d 61, 63 (8th Cir. 1993) (appellate court generally cannot consider

evidence not in record below). Defendant's motions to strike and to

supplement the record are denied.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.