Patmon v. VAN DORN COMPANY, PLASTIC MACHINERY DIV.

• Decision Date: 31 May 1974
• Docket Number: No. 73-2021.,73-2021.
• Parties: John PATMON, Plaintiff-Appellant, v. VAN DORN COMPANY, PLASTIC MACHINERY DIVISION, a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.2d 544 (1974)

John PATMON, Plaintiff-Appellant, v. VAN DORN COMPANY, PLASTIC MACHINERY DIVISION, a corporation, et al., Defendants-Appellees.

No. 73-2021.

United States Court of Appeals, Sixth Circuit.

Argued April 15, 1974.

Decided May 31, 1974.

Michael I. Greenwald, Cleveland, Ohio, for plaintiff-appellant, John Patmon; N. D. Rollins, Rollins & Mosesson, Cleveland, Ohio, on brief.

Robert L. Larson, Joseph S. Ruggie, Jr., Thompson, Hine & Flory, Cleveland, Ohio, on brief, for Van Dorn Co.

Robert M. Phillips, Cleveland, Ohio, on brief, for Local 346 UAW and UAW International.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

PER CURIAM.

Appellant Patmon filed suit in the District Court for damages and equitable relief against his employer, Van Dorn Company (Van Dorn), Local 346 UAW and the International Union, alleging that Van Dorn discriminated against appellant on account of his race (Negro) by refusing to promote him to the job of maintenance electrician, in violation of 42 U.S.C. §§ 1981, 1985 and 2000e, and alleging that the Unions failed and neglected to fairly represent him in prosecuting a grievance against his employer and conspired with his employer to deny his promotion.

Van Dorn and the unions filed motions for summary judgment and in support thereof submitted answers to interrogatories, affidavits, the deposition of Patmon, and exhibits attached thereto. The District Court, in a memorandum opinion and order, found that there was no genuine issue of fact on the proposition that Patmon did not possess the requisite qualifications for the position he was seeking, and granted the motions for summary judgment. Patmon appealed. We affirm.

Patmon was employed by Van Dorn as a pipe fitter in 1965 at $2.71 per hour. His compensation increased each year thereafter, and on September 13, 1972 he was earning $4.68 per hour.

Pursuant to the provisions of a collective bargaining agreement entered into between Van Dorn and Local 346, employees were permitted to bid on openings occurring in other jobs. Patmon did bid at different times for the job of maintenance electrician, but his bids were rejected by his employer on the ground that he did not possess the requisite qualifications for the job. The qualifications for the job of maintenance electrician were described by Van Dorn's Personnel Director in his affidavit, as follows:

For an employee to be awarded a job as maintenance electrician, he must demonstrate his ability to perform the work by prior experience as a maintenance electrician, either at Van Dorn or with a prior employer; or by providing certification of educational training as a maintenace electrician.

The Personnel Director further stated that without such knowledge "an employee would be unable to perform the work, or would perform it in a manner which would result in extreme danger of personal injury or death to the employee performing the work, fellow employees, or other persons."

Before his employment by Van Dorn Patmon had a number of odd jobs, including part time work in wiring houses. He did not possess a license to perform such work nor did he have a maintenance electrician's license from a municipality. At no time did he demonstrate his ability to perform the job by prior experience as a maintenance electrician either at Van Dorn or with any other employer, nor did he furnish a certificate of educational training as a maintenance electrician.

Patmon did file an affidavit in which he stated that it is his opinion that he is a qualified electrician despite the fact that he was employed as a fitter by Van Dorn. He admitted that he holds no electrical contractor's license. Although Patmon was afforded ample opportunity by his employer to establish his fitness for the position, he failed to do so.

Patmon and a white employee filed grievances against the company, which grievances were processed by the local union up to the arbitration stage, when the union worked out a procedure with the employer whereby both employees could take a written test, conducted by an independent electrical contractor, to establish their qualification for the position of maintenance electrician. This electrical contractor was also an electrical instructor for the Parma Adult Education Program. The white employee took the test and failed. Patmon, however, declined to take the test, stating that prior to his refusal—

. . . He was denied the opportunity to make photocopies of the test and his answer sheet; and that he refused the test for fear that the test would not be an unbiased and fairly administered test.

Had Patmon taken the test the Court would have had opportunity to pass upon any question whether the test was biased or unfairly administered. He made no showing that the questions in the test taken by the white employee were biased, or that the test was unfairly conducted. But of more importance is the fact that any issue of Patmon's fitness for the position could have been determined if he had taken the test.

It is clear from uncontroverted evidence that Patmon was not promoted to the job of maintenance electrician because he did not possess the requisite qualifications. He had no experience in that field.

In enacting Title VII of the Civil Rights Act of 1964 Congress never intended to guarantee a job to every person irrespective of his qualifications. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).¹

Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 sanctions fairly conducted tests.

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