Rosen v. Public Service Electric and Gas Company

• Decision Date: 01 April 1969
• Docket Number: No. 17286.,17286.
• Citation: Rosen v. Public Service Electric and Gas Company, 409 F.2d 775 (3rd Cir. 1969)
• Parties: Leo ROSEN, Utility Co-Workers Association and Morgan Sweeney, Appellants, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

409 F.2d 775 (1969)

Leo ROSEN, Utility Co-Workers Association and Morgan Sweeney, Appellants, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY.

No. 17286.

United States Court of Appeals Third Circuit.

Argued December 19, 1968.

Decided April 1, 1969.

George Duggan, Parsonnet, Parsonnet & Duggan, Newark, N. J., for appellants.

Luke A. Kiernan, Jr., Newark, N. J., for appellee.

Daniel Steiner, Gen. Counsel, Russell Specter, Asst. Gen. Counsel, Lewis Collens, Atty., Equal Employment Opportunity Commission, Washington, D. C., amicus curiae.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge.

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.¹

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,² the court lacked jurisdiction.³

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 1965⁴ 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.⁵

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.⁶

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.⁷

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.⁸ 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.⁹ 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.¹⁰

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.¹¹

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, 1967.¹² No similar provision was made for male employees electing early retirement.¹³

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. (Emphasis added). (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 sic. (Emphasis added). (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.¹⁴ 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;¹⁵ hence, the administrative remedies under the 1964 Act had not been exhausted.¹⁶

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."¹⁷

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).¹⁸ 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,¹⁹ 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.²⁰ 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 1964.²¹

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.²²

Turning now to the amendment to the original complaint which alleged continuing...