employer know the employee wants to be considered for a position. This, Robert and Wortham have done. They filled out the proper form. But instead of delivering the perforated carbon copies, they delivered photocopies. Defendants have not alleged any special quality of the carbon form that mandates their use. Nor was delivery via company mail inadequate. Many important documents travel this route. Although technically inadequate, the applications were well within their requisite purpose, to inform Conrail that Robert and Wortham McCullough wanted to be considered for these openings. There is, therefore, a genuine issue of material fact on this issue.
Conrail, however, contends that even if plaintiffs properly applied for the original openings, they have not applied for subsequent openings. It is true that neither Robert nor Wortham filled out CT-88's again for each newly-posted job. But plaintiffs produced evidence from various employees at Conrail that the application process was somewhat looser than the book required. It was stated that applicants would normally be considered for subsequent positions if they failed to obtain the prior promotion. There is a question of fact as to whether Robert and Wortham complied in a manner sufficient to be considered for promotion under Conrail's actual policy in practice. Consequently, summary judgment is improper on this basis as well.
The parties have raised other issues that merit brief discussion. Conrail contends that none of the plaintiffs were the best qualified for the jobs for which they applied. Therefore, so runs the argument, plaintiffs have failed to satisfy the third element of their prima facie case. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.
Conrail misinterprets the meaning of the word "qualified" in this context. When referring to plaintiffs' initial burden of proof, qualified is more akin to eligible or competent, not the most skilled, capable, or competent. For example, a 31 year-old applicant would not be qualified for position where the maximum allowable age for an applicant was 29. Kofer v. Pelham, 710 F. Supp. 483, 484 (S.D.N.Y. 1989). An applicant's failure to possess required aptitude, intellect, and communication skills can legally render an employee unqualified if the measuring tool is a fair one. Hill v. Seaboard Coast Line R.R. Co., 885 F.2d 804, 808-10 (11th Cir. 1989). The fact that others might be better skilled, have better work records, and the like go to Conrail's potentially non-discriminatory reason for failing to promote each plaintiff. And, whether that is true is inherently a question of fact. Maldonado v. Metra, 743 F. Supp. 563, 569 (N.D. Ill. 1990).
All parties make much of the allegedly racist statements made by Division Superintendent Stefanovich. However, the Division Superintendent had no direct involvement in the promotion process and was not plaintiffs' immediate supervisor. Thus, the statements of Stefanovich are not relevant here. See Bailey v. Northern Indiana Pub. Serv. Co., 910 F.2d 406, 410 (7th Cir. 1990) (racial animus by immediate supervisor is one method to meet prima facie case). An opposite conclusion might follow if it could be shown that Stefanovich inflicted his racist motives on his subordinates. Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1530 (7th Cir. 1990). There is no evidence in the record to support such a conclusion.
The winnowing process has left the court with only a few positions that survive summary judgment. Robert has pursued Title VII claims for all nine job postings. This court grants summary judgment on one of the September 21, 1983 jobs, the November 2, 1983 position, and two of the four February 8, 1984 jobs. In each of these cases, the job was given to someone with Seniority and therefore not a position available to Robert. Summary judgment is granted for the second September 21, 1983 and October 19, 1983 postings since Robert did not apply for those jobs. That leaves only three job postings still open for which Robert may continue his Title VII claims against Conrail: two of the four February 8, 1984 openings, and the position posted March 7, 1984.
Wortham has also pursued Title VII claims for all nine openings. This court grants summary judgment on one of the September 21, 1983 jobs, the November 2, 1983 position, and two of the four February 8, 1984 jobs. Each of these was given to an employee with Seniority and therefore not open to Wortham. Summary judgment is also granted for the other September 21, 1983 position, and the October 19, 1983 job opening. Wortham did not apply for either of these and therefore he may not now be heard to complain that he was not promoted to those positions. The effect of summary judgment leaves only three job openings in dispute for Wortham: two of the February 8, 1984 jobs, and the March 7, 1984 opening.
Finally, Gerald has also alleged Title VII violations for all nine positions. Summary judgment is granted as to one of the September 21, 1983 jobs, the November 2, 1983 position, and two of the four February 8, 1984 jobs. These jobs were given to Senior employees and thus not open to Gerald. That leaves Gerald able to contest the following openings: one of the two September 21, 1983 jobs, the October 19, 1983 position, two of the four February 8, 1984 openings, and the March 7, 1984 position.
IT IS SO ORDERED.