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December 30, 1986


The opinion of the court was delivered by: BECHTLE


 Plaintiff American Postal Workers Union, Philadelphia Area Local ("Union") instituted this complaint to vacate an arbitration award sustaining the removal of Thomas Noon, a former Postal Service employee and Union member. The Union contends that Mr. Noon was fired without a fitness for duty examination required by the National Collective Bargaining Agreement, and that his removal constituted a violation of the Rehabilitation Act, 29 U.S.C. § 791 (1973). Defendant United States Postal Service moved for dismissal of plaintiff's claim and alternatively, for summary judgment. Plaintiff similarly moved for summary judgment. For the reasons stated herein, defendant's motion for summary judgment will be granted and all other motions will be denied.


 The facts are undisputed. In 1982 before he began work for the Postal Service, Mr. Noon suffered injuries in a non-work-related automobile accident. After working approximately nine months with the Postal Service, Mr. Noon's lingering injuries caused him to request temporary light duty. This was granted and he was limited to working no more than four hours per day. At the expiration of that temporary light duty period, Mr. Noon repeatedly sought its extension. On July 2, 1983, Mr. Noon sought again to be assigned to temporary light duty. The Postal Service's medical officer instead put Mr. Noon on permanent light duty. Subsequently, the Postal Service determined that Mr. Noon could not perform his duties and terminated his employment.

 Mr. Noon and the Union contested this decision before an arbitrator pursuant to the Collective Bargaining Agreement ("CBA"). The arbitrator found that the Postal Service could remove an employee with less than five years experience who was physically unable to perform his work. Moreover, the arbitrator found that the Postal Service was not required to give Mr. Noon a fitness for duty examination before his termination.

 Plaintiff contends that the arbitrator's decision contravenes the Rehabilitation Act and is not drawn from the essence of the CBA.

 Defendant urges the court to dismiss plaintiff's complaint or to grant summary judgment for defendant based upon three contentions: (1) the court lacks subject matter jurisdiction over this complaint because Mr. Noon failed to exhaust his administrative remedies with respect to plaintiff's claims of handicap discrimination; (2) plaintiff has failed to state a claim against defendant because it is a local Union and, as such, lacks standing to seek to vacate the arbitration award; and, (3) the complaint has not alleged sufficient grounds upon which to vacate the award at issue.


 Summary judgment may be entered pursuant to Rule 56 when the record reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is not appropriate to dispose of a matter by summary judgment if there is even a slight doubt as to the facts. Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir. 1974).

 The moving party bears the burden of pointing to the portions of the record which demonstrate that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The court must view all of the inferences in the light most favorable to the non-moving party, must resolve all doubts against the moving party, and must take as true all allegations of the non-moving party which conflict with the moving party's allegations. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Hollinger v. Wagner Mining Equip. Co., 667 F.2d 402, 405 (3d Cir. 1981).

 The issues in the present case are properly resolved through summary judgment.

 Plaintiff's Rehabilitation Act claims may not be raised before this court because Mr. Noon, the employee, failed to exhaust administrative remedies. 29 U.S.C. § 794a(a)(1) and 42 U.S.C. § 2000e-16(c). It is settled that administrative actions must be taken by the aggrieved employee before a civil action may be filed. Smith v. United States Postal Service, 742 F.2d 257 (6th Cir. 1984); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981); Mackay v. United States Postal Service, 607 F. Supp. 271 (E.D. Pa. 1985). The employee must first seek redress from the agency that discriminated against him. 42 U.S.C. §§ 2000e-5(f)(1) and 2000e-16(c). In addition, the employee must bring the claim of discrimination to an EEOC counselor within 30 days of the alleged incident. 29 C.F.R. § 1613.213. If the dispute is not resolved at that point, the employee ...

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