Seitz, Aldisert and Stahl, Circuit Judges. Seitz, C. J., dissenting.
This appeal is from an order of the district court granting appellee's motion for summary judgment on the ground that the court lacked jurisdiction over appellants' suit which had been brought under the portion of Title VII of the Civil Rights Act of 1964 prohibiting discrimination on account of sex.*fn1
The basis for granting the motion was twofold. First, the court was of the opinion that because the alleged unfair employment practice, discrimination in pension rights on the basis of sex, had been rectified by a collective bargaining agreement negotiated subsequent to proceedings before the Equal Employment Opportunity Commission (EEOC) and the filing of the suit, the issues raised by the complaint had become moot. Secondly, in dealing with an amendment to the appellants' complaint, which alleged that the appellee-company was still discriminating on account of sex in the pension arrangement under the new collective bargaining agreement, the court concluded that because the latter contention had never been the subject matter of a charge filed with the EEOC,*fn2 the court lacked jurisdiction.*fn3
The appellants, Rosen, Sweeney and Utility Co-Workers Association, a certified bargaining representative for about 1,800 of the 15,000 employees of appellee, Public Service Electric and Gas Company, filed charges in 1965*fn4 with the EEOC alleging that appellee was committing an unlawful employment practice within the meaning of Title VII of the Civil Rights Act of 1964 by maintaining a pension plan that discriminated on the basis of sex because it permitted retirement at different ages and length of service for men and women.*fn5
Under the original pension plan male employees could retire at 65 with 25 years of service, with mandatory retirement at age 70. Female employees could retire at age 60 with 20 years' service and retirement was mandatory at age 65. The plan also provided for early retirement for male employees at the age of 60, but before attaining the age of 65, upon completion of 30 years of service. Male employees taking early retirement had their pension benefits reduced by a specified rate.*fn6
According to appellants, a male employee taking early retirement at age 60, after 30 years' service, would receive a substantially lower pension than a female employee retiring at the same age, with the same length of service, assuming the same average annual salary.*fn7
After the charges were filed with the EEOC, and following an investigation, the Commission issued a decision, dated January 26, 1966, finding reasonable cause to believe that the pension plan violated Title VII.*fn8 By letter dated February 9, 1966, the Director of Compliance of the EEOC informed appellant Rosen that such reasonable cause had been found, and that the Commission would attempt to eliminate the practice by conciliation.*fn9 By another letter, also dated February 9, 1966, Mr. Rosen was advised by the Director of Compliance that due to the heavy workload of the Commission, it had not been possible to undertake or to conclude the conciliation efforts, but that conciliation would be undertaken and continued.*fn10
Mr. Rosen was further notified that under Section 706(e) of Title VII of the Civil Rights Act of 1964, he had the right to bring suit in the district court within thirty days after the receipt of the letter. Suit was instituted on March 9, 1966, with Rosen, Sweeney and the union named as plaintiffs.*fn11
During the pendency of the suit, the union and the appellee-company negotiated a new collective bargaining agreement effective May 1, 1967, which, inter alia, modified the pension plan by erasing the differences in the optional and mandatory retirement ages for men and women, thus apparently eliminating the predicate of appellants' initial complaint. All employees were permitted to retire at 65, with compulsory retirement at 70.
The modified pension plan also provided for early retirement for all employees at age 60, on a reduced pension, after 20 years of service. Female employees electing early retirement would not suffer any reduction in benefits on account of service prior to May 1, 1967.*fn12 No similar provision was made for male employees electing early retirement.*fn13
Following the adoption of the new collective bargaining agreement, the district court, on December 21, 1967, orally granted leave to appellants at pretrial conference "to file an amended" complaint to allege that the modified pension plan also violated Title VII of the Act. (App. 64a).
While we cannot find in the record that an amendment to the original complaint, or an amended complaint, was actually filed, the parties and the court proceeded in the action further as if amendment had been accomplished. For example, in its motion for summary judgment, appellee lists as one of its grounds:
3. The revised negotiated Pension Plan does not discriminate within the purview of Title VII of the Civil ...