UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: April 1, 1969.
LEO ROSEN, UTILITY CO-WORKERS ASSOCIATION ET AL., APPELLANTS,
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLEE
Seitz, Aldisert and Stahl, Circuit Judges. Seitz, C. J., dissenting.
STAHL, C. J.:
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 Rights Act of 1964. (App. 68a).
Likewise, in its briefs to this court, appellee refers to the "oral amendment" of the complaint at the pretrial conference. (Main brief, p. 2; reply brief, p. 2.).
In the oral opinion rendered by the court below, the judge stated:
I consider that I am without jurisdiction at this particular time to grant the relief sought by way of the amendments to the pleadings set forth in the pretrial order. (App. 110a).
Thus in our disposition of this appeal we will treat the complaint as if an amendment had been filed.
On March 19, 1968, the district court granted appellee's motion for summary judgment.*fn14 The court was of the opinion that the modification of the pension plan rendered the original complaint moot. Summary judgment was granted as to the amendment to the complaint on the ground that no charges had been filed with the EEOC alleging that the modified pension plan constituted an unfair employment practice;*fn15 hence, the administrative remedies under the 1964 Act had not been exhausted.*fn16
On this appeal the appellants and the EEOC, appearing as amicus curiae, contend that the original complaint was not mooted by the May 1, 1967, revision in the pension plan because of the possibility that some employees may have suffered money damages before the change was made, and because the district court had failed to determine whether injunctive relief was necessary to protect the public interest against the alleged continuing discrimination by appellee on the basis of sex. The EEOC argues that the policy expressed in Title VII will be frustrated if parties-defendant in a Title VII proceeding are permitted "to place plaintiffs on an administrative treadmill by compelling litigants to go back to the Commission every time there is an alleged change in a discriminatory practice."*fn17
We find merit in the first part of appellants' argument, i. e., the possibility of some of the employees of the appellee-company having suffered harm before the May 1, 1967 pension plan modification. See Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968).*fn18 Accordingly, insofar as the original complaint is concerned, the case will be remanded for a determination as to whether any of the named appellants, and any other male members of the union,*fn19 may have retired between the date of the initial 1965 charges before the EEOC and the May 1, 1967 change, and thus may have been harmed by the alleged discrimination in the pension benefit formula.*fn20 Such a finding, of course, would require the court to rule on whether the original pension plan, prior to its modification, violated Title VII of the Civil Rights Act of 1964.*fn21
If the district court does not find any party entitled to the kind of relief above described for harm caused by alleged discrimination prior to the May 1, 1967 pension plan revision, then we agree with the appellee that the issues raised in the original complaint are moot. We recognize that the complaint specifically requested injunctive relief, and we have studied carefully the position of the EEOC that the strong policy behind the Civil Rights Act of 1964 would normally support the grant of an injunction to make certain that an employer who has voluntarily stopped discriminatory practices continues to hew to the proper course.
As the appellee points out, and as is implicit in the cases upon which the EEOC relies, e.g., Jenkins v. United Gas Corp., supra, this kind of injunctive relief is particularly appropriate in the sensitive area of racial discrimination where the Commission and the courts should make sure that once the formal proceedings have ended the ugly face of bias does not reappear. But this is not such a case. We do not make the distinction on the basis that discrimination on account of sex is any less reprehensible or any less protected than discrimination because of race. We make the distinction because here we have a written modification of a pension plan, embodied in a collective bargaining agreement, which excised the age differentials in retirement between men and women to which the original complaint was addressed. We conclude, therefore, that if no male employee was harmed by the pre-May 1967 pension plan, that should dispose of the original complaint and injunctive relief is unnecessary.*fn22
Turning now to the amendment to the original complaint which alleged continuing discrimination under the modified pension plan, we have already noted that a second suit has been filed duplicating the charge that the modified plan violates Title VII. Because this second suit has not yet been disposed of, and because it deals with precisely the same substantive issues as the amendment to the original complaint, we deem it unnecessary to determine whether the grant of summary judgment as to that portion of the first complaint was in error.*fn23 It was suggested at oral argument that consolidation of the two actions, i.e., the original complaint as amended and the second complaint, would be sought if this court directed a remand. We believe that this would be the proper procedure to follow and that upon such consolidation the issues involved in the initial complaint, the amendment thereto, and the second complaint, can be sifted out and disposition made of them.*fn24
As a matter of form, one other issue must be dealt with. Appellee moved to dismiss the appeal, and argument on the motion was heard at the time of the hearing on the merits. The motion to dismiss the appeal is denied.
The judgment of the district court will be vacated and the case will be remanded for further proceedings consistent with this opinion.*fn25
SEITZ, C. J., dissenting:
The original complaint filed in this action on March 9, 1966, was based on Title VII of the Civil Rights Act of 1964. It explicitly sought declaratory and injunctive relief with respect to the defendant's then pension plan. The gravamen of the complaint was that the plan violated the Act because it discriminated in several respects in favor of female employees and in others, in favor of male employees. After the action was commenced, the defendant company revised the plan. Thereafter the plaintiffs amended their complaint*fn1 to challenge the plan as revised and to assert a class action. Still later defendant filed a motion for summary judgment on several grounds. In amending their complaint plaintiffs made it clear that they were not withdrawing the original complaint, even though they conceded that the bulk of the specific grievances alleged may have been rectified by the adoption of the revised plan.
The district court granted defendant's motion for summary judgment. Apparently the district court believed that the subject matter of the original complaint had been rendered moot by the revision of the pension plan and that only the amended complaint was before it. The amended complaint was dismissed on the ground that the court did not have jurisdiction over its subject matter, because plaintiffs had not complied with the procedural requirements of the Act by first requesting relief from the EEOC.
As I understand the majority opinion, the court is remanding the subject matter of the original complaint to the district court to have it determined if there are any employees, apparently treated as a class, who were injured by the alleged violation of the Act in the period prior to the modification of the plan. If they cannot, then presumably under the majority decision, the district court properly viewed the original complaint as moot. If they can, then the majority would direct the district court to decide whether plaintiffs have otherwise stated a legally cognizable claim. Although I agree with the majority that there should be a remand, I think their remand is too restrictive.
By their original complaint the plaintiffs sought, inter alia, a declaratory judgment that the plan violated the Act. The defendant raised many defenses, including the contention that Title VII of the Act did not apply to pension retirement plans. I think plaintiffs were entitled to have a declaration as to whether Title VII was applicable to the plan and if so, whether the plan violated the Act. The revision of the plan did not render these important issues moot; the parties were still very much concerned with their resolution. Indeed, the issue of the applicability of Title VII was reasserted by the defendant after the plaintiffs amended the complaint. Moreover, it was a particularly appropriate subject for a declaratory judgment in view of the public policy overtones involved.*fn2
Plaintiffs also sought injunctive relief. Were the district court to decide that Title VII applies to pension plans and that the revised plan was in violation of the Act then the court would be obliged to consider the need for an injunction. Contrary to the majority's approach, I think that it is premature to consider the propriety of injunctive relief in view of the fact that the question was not presented or decided below, and because the basis for such a determination has not been developed.
I next consider the dismissal of the amendment to the complaint by the district court on the ground that plaintiffs had not exhausted their remedies before the Commission as was said to be required by the Act. 42 U.S.C.A. § 2000e-5(e). The majority decided that this issue need not be resolved. I am forced to disagree.
Preliminarily, although the district court posed the issue in terms of its jurisdiction, it had jurisdiction and the issue is whether the statutory prerequisite had been satisfied.
Considering the discrimination charged in the amendment with that in the original complaint,*fn3 I conclude that the subject matter is so interrelated that the Act does not require plaintiffs to again petition the Commission in order that the district court might properly consider the amendment. A purpose for first proceeding before the Commission in this type of case is to permit an amicable settlement without litigation. When grievances are obviously independent, that statutory purpose is best served by first resorting to conciliation before the EEOC. However, and as the EEOC urges, where, as here, the basic grievance had been "processed" by the Commission and litigation recommended, no statutory purpose is served by forcing further conciliation efforts. I therefore believe that it was error to grant summary judgment on the ground relied upon by the district court.