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May 20, 1997

WILLIAM KIRKENDALL, individually and and as class representative of others similarly situated including past, present and future employees of defendant United Parcel Services, Inc., Plaintiff,

The opinion of the court was delivered by: LARIMER

 This action is brought by plaintiff, William Kirkendall ("Kirkendall"), individually and as class representative of other similarly situated individuals, including past, present, and future employees, (collectively "plaintiffs"), of defendant United Parcel Service ("UPS"), pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq.


 The complaint alleges that, in 1994, UPS adopted a policy requiring employees to lift, carry, and deliver packages weighing up to 150 pounds. Prior to this time, the weight limit on all packages was 70 pounds. As a result of this policy, Kirkendall suffered a back injury and the remaining plaintiffs suffered back and other injuries, causing them to become disabled. Plaintiffs notified UPS of their disabilities, and UPS refused to accommodate them.

 In this action, plaintiffs maintain that they are qualified individuals with disabilities under the ADA and are able to perform the essential functions of their jobs with reasonable accommodations.

 Pending before the Court is defendant's motion to dismiss for lack of jurisdiction or for summary judgment.


 UPS moves, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss Kirkendall's complaint for lack of subject-matter jurisdiction. UPS maintains that Kirkendall's ADA claim must be submitted to the grievance/arbitration procedure outlined in the Collective Bargaining Agreement ("CBA") in effect between plaintiffs' union and UPS. Kirkendall argues that he is not required to submit to the CBA's grievance/arbitration procedure and that he may sue in the first instance here in federal court on his ADA claim.

 The Court begins its analysis of this dispute with the unanimous Supreme Court decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). There, the Court held that an individual may commence an action in federal court under Title VII even though he already had submitted his discrimination claim to arbitration, pursuant to a collective-bargaining agreement, and the claim had been decided adversely to him. *fn1" According to the Court:

In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.

 Id. at 49-50.

 The Court reasoned that:

There can be no prospective waiver of an employee's rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual's right to equal employment opportunities. Title VII's strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee's rights under Title VII are not susceptible of prospective waiver.

 Id. at 51-52 (citations omitted).

 The Court made it clear that both contractual and statutory rights "have legally independent origins and are equally available to the aggrieved employee." Id. at 52. The Court concluded that "the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the ...

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