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FYNES v. WEINBERGER

July 22, 1985

JAMES FYNES and JOHN GEORGE MILLIKEN
v.
CASPAR WEINBERGER, Secretary of Defense and REAR ADMIRAL J. W. AUSTIN, Commandant, Philadelphia Naval Base and ANTHONY SANTINI, Staffing Specialist, Philadelphia Naval Shipyard



The opinion of the court was delivered by: WEINER

WEINER, J.

 Presently before this court is a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendants, Casper Weinberger, Secretary of Defense, Rear Admiral J.W. Austin, Commandant at the Philadelphia Naval Base, and Anthony Santini, Staffing Specialist. The underlying action was initiated by plaintiffs, James Fynes and John George Milliken, based on alleged violations by the defendants of the Rehabilitation Act of 1973, 29 U.S.C. § 794, *fn1" the Civil Rights Act of 1964, 42 U.S.C. § 1983, the Administrative Procedure Act, 5 U.S.C. §§ 551, 702, and the Fifth and Fourteenth Amendments of the United States Constitution. While defendants' motion for summary judgment is directed to all five (5) claims, we shall grant it only as to the § 1983 claim.

 Plaintiff, Fynes, had been employed at the Philadelphia Navy Yard as an insulator and mechanic for the past nine years. He alleges that as a result of such employment, he contracted "asbestos-caused disease." (Plaintiffs' complaint, para. 7).

 Plaintiff, Milliken, had been employed at the Philadelphia Navy Yard for eleven (11) years when he, too, alleges he became afflicted with asbestosis.

 In addition to the physical symptoms suffered by both plaintiffs as a result of contracting this disease, plaintiffs have since been assigned to a "leave-without-pay" status. Plaintiffs allege that they are "handicapped" within the definition applied under the Rehabilitation Act of 1973, and further, that they have been discriminated against solely as a result of this "handicap." In addition to violations of the Rehabilitation Act, plaintiffs aver that the navy yard's alleged inability to accommodate plaintiffs' handicaps, as well as defendants' conduct in denying plaintiffs the benefits of disability status and the opportunity for restrictive employment constitute violations of the Civil Rights Act, the Administrative Procedure Act, plus the Fifth and Fourteenth Amendments.

 Defendants' response avers that plaintiffs have not stated a claim upon which relief can be granted because they have not exhausted administrative remedies in advance of filing this suit. (Defendants' motion, para. 2). In addition, defendants allege that there are no genuine issues of material fact, and that plaintiffs have failed to name the head of the agency as the defendant, thus requesting judgment as a matter of law.

 On a motion for summary judgment, the record is liberally construed in favor of the party opposing the motion, and all doubts are resolved against the movant, Fireman's Ins. Co. of Newark, N.J. v. Dufresne, 676 F.2d 965, 969 (3d Cir. 1982); the role of the court is only to decide whether there is an issue of fact to be decided, not to decide the factual issue, and the barest admissible evidence in opposition to the motion is a basis for denying the motion. Fidelity Leasing Corp. v. Dun & Bradstreet, Inc., 494 F. Supp. 786, 788 (E.D. Pa. 1980) citing Remak v. Quinn, 611 F.2d 36, 37 (3d Cir. 1979). Summary judgment should be granted only where it is clear that there is no genuine dispute about what either the facts are or the inferences to be drawn from such facts. Teleprompter of Erie, Inc. v. City of Erie, 567 F. Supp. 1277, 1280 (W.D. Pa. 1983). Even though there may be no dispute about the basic facts, summary judgment will be inappropriate where plaintiffs disagree on the inferences which may reasonably be drawn from those facts. Id.

 Plaintiffs' first allegation rests on Section 794 of the Rehabilitation Act of 1973. Section 794 reads:

 
No otherwise qualified handicapped in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794. *fn2"

 Section 794a proscribes the remedies afforded individuals who have alleged violations under § 794. Section 794a reads:

 
(a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title. 29 U.S.C. § 794a(a)(2).

 Title VI of the Civil Rights Act of 1964 [ 42 U.S.C. 2000d et seq.] which is the remedial measure advanced by section 794 above, reads as follows:

 
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d.

 The purpose of enforcing this section is clearly "to avoid the use of federal resources to support discriminatory practices . . . [and] to provides individual citizens effective protection against those practices." Chowdhury v. Reading Hospital & Medical Center, 677 F.2d 317, 319 (3d Cir. 1982) [ quoting Cannon v. University of Chicago, 441 U.S. 677, 704, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979)], cert. denied 463 U.S. 1229, 103 S. Ct. 3569, 77 L. Ed. 2d 1411 (1983). To further the above stated purposes, Congress provided for an administrative enforcement mechanism, contained in section 602, *fn3" by which the funding agency attempts to secure voluntary compliance and, failing that, is empowered to terminate the violator's federal funding. 677 F.2d at 319. Under the regulations promulgated pursuant to this section, an aggrieved individual may file a complaint with the funding agency but has no role in the investigation or adjudication, if any, of the complaint. ...


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