issues of fact and that it is entitled to judgment as a matter of law.
The record shows that as part of the arbitration process, Ms. Durant was given a test to determine whether she was capable of performing the Physical Tester job. The arbitrator found that she was not physically capable of doing the job. The arbitrator's only comment about whether the test was related to the demands of the job was that "the test covered four regular items of the Physical Tester's work . . .". Arbitration Award, p. 2. The Arbitration Award was authenticated by Ms. Durant at her deposition, and is properly part of the record.
Ms. Durant testified that she did not know what the Physical Tester job involved, but that she felt that she passed the test.
Ms. Durant's admission that she does not know precisely what the Physical Tester's job involves is not fatal to her claim. She testified that she felt that she passed the test, and that testimony is sufficient to create an issue of fact as to whether she was qualified for the position. In resisting a motion for summary judgment she is entitled to have her deposition testimony credited entirely, and she is entitled to every reasonable inference that can be drawn from her testimony. It is reasonable to infer that although Ms. Durant does not know all the duties involved in the job, she was certain that she performed the tasks assigned to her during the test without error. For example, the Court is required to infer that she in fact made a clear impression with the metal stamp, even though the arbitrator was of the opinion that she did not.
Of course, the issue of whether Ms. Durant was qualified for the promotion is not dispositive of the case. In fact, the Court and the parties may be faced at trial with a very difficult issue of whether Ms. Durant could have suffered legal harm if (a) she was clearly unqualified for the job, but (b) one of the company's reasons for refusing to promote her was her race. Compare Patmon v. Van Dorn Co., 498 F.2d 544 (6th Cir. 1974) with Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157 (8th Cir. 1971).
In any event, there is certainly an issue of fact on the discrimination question. The plaintiff has introduced evidence, which, if believed, raises the possibility that blacks are seriously under-represented in the Clerical and Technical division. Of course "proof of (a) pattern or practice (of discrimination) supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy". Teamsters v. United States, 431 U.S. 324, 362, 97 S. Ct. 1843, 1868, 52 L. Ed. 2d 396 (1977). A fortiori, evidence of a pattern or practice at least raises an inference of discrimination sufficient in most cases, and in this case, to preclude summary judgment on an individual claim, either under Title VII or under § 1981.
The union defendants have moved to dismiss Ms. Durant's Title VII complaint on the grounds that Ms. Durant did not name the union in her EEOC complaint. The union's motion will be granted.
Resolution of this motion is governed by Glus v. G. C. Murphy Co., 562 F.2d 880 (3d Cir. 1977). The plaintiff in Glus named the company and her local union in her EEOC sex discrimination complaint but failed to name the International union that was involved. The International had helped to negotiate the discriminatory contracts at issue and was held liable by the district court for contribution to the company. The Court of Appeals remanded the case to the district court on the issue of the International's liability, with instructions to make findings of fact about the circumstances surrounding the plaintiff's EEOC filing. The Court listed four factors which should be considered by the district court in determining whether it has jurisdiction over a party not named in the EEOC complaint:
(1) Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint.
(2) Whether, under the circumstances, the interests of a named party are so similar to the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings.