Petition for Writ of Certiorari — Drewrys Ltd. U. S. A. v. Bartmess

Supreme Court brief1971

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ai . iene Suaceme Court, U.S.

_Y Sure 3 linc? : FILED

IN THE Pa ay. SEP 4 1971

Supreme Court of the United: tates, ow

Ocroser Term, 1971, ~ .

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1-321

| DREWRYS LIMITED U. 8S. A., INC. anp LOCAL UNION NO.

275, INTERNATIONAL UNION .OF UNITED BREWERY, é

_ FLOUR, CEREAL, SOFT DRINK AND DISTILLERY n fee ;

” WORKERS OF ‘AMERICA, AFL- CIO, muro ts “a

, Petitioners,

VS.

ANN BARTMESS, | a |

<<< a eat = Respondent. m= F

PETITION FOR WRIT OF CERTIORARI TO THE b

UNITED STATES COURT OF APPEALS __

‘FOR THE SEVENTH CIRCUIT.

2 PERROTT Rag 08

" JAMES W: Geni, Sr) eae ——_

_CRUMPACKER, May, Levy & SEARER,

224 West Jefferson Boulevard,

South Bend, Indiana 46601,

Attorney for Petitioner, Local Union No. 275,

International Union - of €United Brewery,

Flour, Cereal, Soft Drink and Distillery

W. orkers of America, AFL-CIO,

o- WARREN E. McGut1,

a TuHorNBuRG, McG, Dean, Harman,

; GAREY & Murray, ee : ~

‘ 645 First Bank Building,

South Bend, Indiana 46601,

Attorney for Petitioner, Drewrys oe

_ Limited U. S._A., Ine. Ty

Be aa ie ee ed

Of Counsel:

-WarrEN A. DEAHL,

FREDERICK F, THORNBURG, ; eae?

THORNBURG, McGIL1, DEAUL,

_ Harman, Carey & Mprray,

. 645 First Bank Building,

South Bend, ‘Indiana 46601,

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THE GUNTHORP.WARREN PRINTING COMPANY, CHICAGO 56

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A REBT gta LARTER ROLL DES cee oN Ral

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Opinions Below .........7 Seawee ee

Jurisdiction rs a perectae

Gvaetions Pies Pe eR ere ry re ee <¥eueen ob

Statement Pees sate

Reasons for Granting Writ

MOM a ee ee

: Appendix os L

A. Opinions Below ...... Boe eee eas Mere ey “Al

B. \ Meatatee 6 oes ie epee enws iy? _ AY

C. Federal Guideline ....... penne” Ame. |

CITATIONS.

Si gr NE Near i

Air ‘Transport Associ ation of Ame wiea v. Hernandez,

264 F.Supp. 227 (D. D.-C.,. 1967), rey ees are

Allen. v. Loekheed-G eor ein Cospany, 61 Li. Ci. 7 9333

(N. D. Ga., 1968) Beare de SIE Neen ae Rerete

American Newspaper Pt hfishing Association v, Alex-

ander, 294 F. 8 supp. 1100 (D. D. C., 1968) ...... pis

Burney v. North Ameriean Reckwelt Corp. 6302 F..

Supp. 86 (G; D. Cal., Lb ee ie aa hd Sivan keane

Choate \ ». Caterpillar Tractor Company, ith Cin 4 402.

F.2d 357. SE ooo 2d cade cies eee ee aS wets aes

Cox v. U. S..Gypsum Company, 7th Cir., 409 F. 2d 286 —

‘Sones Ae eR aa Pi wneRenee ees

ob.

li .- *

Drew Ny. Lawrimore, 257 F. Supp. 659 (S. CG, 1966)

rev'd on other grounds, 4th Cir., 380 F. : 2d 479 (1967) 16

| Edw ards v. North American Rockwell Corp:, 291 F.

Supp. 199 (C.D. ‘Cal., 1968)f-.......... peer,

| Fgre v. Southern Bell Tel. & Tel. Co., 293 =e

; 587 (W. D. N. Cc. ROOD 4aNeaesndes Nghak aoa Keen .

Greene v. United States, 376 U. S. 149 (1964) 02... 20

Griggs v. Duke Power Company, 4th Cir., 420, F. 2d

1225 » (1970), rev’d on other grounds, 400 U, S. 813,

95 8. Ct. 849, 28 L, Ed. 9d 158... ele. — -

“Gr uenwald v. Gardner, ond Cir., 390 F. 2d 591 ee

cert. den., 393 U.-S. 982 (1968) ee On ne ae 17

Hess v. Esperdy, 234 F. Supp..909 (S. DN. Y. 1964}. 16

Hutchins vy. United States Industries, Inc.; 309 F. Supp.

OT Ce OM Ta es 1

_ Mickel.vy. South. Carolina State Employ rment Service,

», 4th Cir., 377 F.2d 239, cert. denied, 389 U. S. 877,

88 S. Ct. 177, 19 L. Ed. 2d 166 SEED aide arin tenes 412

NLRB vy. E & B Brewing Company, 6th Cir., 276 F. 2d

594 (1960) cert. den., 366 U. S. 908 (1961) ore pres:

NLRB v. Guy F. Atkinson Co., 9th Cir., 195 F, 2d 141

(1952) AS Pm SU (eee aE TID EP eR. ano Ps 21

— Rosen v. Publie Services Flectric & Gas Co., sees F.

On. 22. , 2 FEP. Cases 1090 (N. J.; 1970). ... 15, 16,18 —

Securities and Exchange Comm, v. Cheney Corp., 332

WU, B. 108 (196879 sc: PO Pee re or Pee eer ee 21

Singer v. A. Hollander & Sons, Inc., 3rd Cir,, 202 F. od

$8 GMD) i. peta enka he tenga heen sons ee

Thorpe v. Housing Author of D of Durham, 393 U. S..268

CRP Ss iwecuss. we gepbeds Notte e eet e ee ce eee ee eee 2

ae | |

ais

: iit

oe n Pace. R. Co. v. Laramie Stock Yards 0, 231.

eM ee a. 20

Younger Vv. Glamorgan Pipe & yn a Co., 310 F.

Supp. 195 (D. W. Va. , 1969) Pan sen pene ie haha 11

ae a Me tatutes >

5 USS. ©. §706(2)(A)-.....2...000: piiksieis sed, ee O8

28 U.S. C. §1254(1) ....0.0.. Meena erasers O 5c ae

42 U: Ss. C. § 2000e- et seq. Litas yt week Ries See ine ager

. Civil Rights -Act of 1964, Title Vil ee

Fc | SNE aC ee Ree! 2,7, 16

‘ Cees oo Aa Cagis Peas

§ 2000e-5(a) ..... Peter ee. Hee PE: 2,.6, 13

St) | a sO re 2, 3,7, 8, 9, 10, 11, 13

ee ee ee

$ 2000e-12(b) .........0.... eee 2,0»

seit ore Federal Guidelines.

fSqual Employment Opportunity Commission’s Guide- ae

lines on Discrimination | Because of Sex, Section

— 1604. 31(a) and (b);, as amended February 21, 1968, 29

OER. $ 1604.31 (a) ee SS Barns oe

DPS Oa re PIE eth 2, 4, 6,7, 8, 14, 15, 16, 18, 19, 20

Other Authorities.

1964- U. Ss. ‘Code Cong. & Adm. News, p. 2355 et seq. . 17

cles Employment Practices Guide. ate oes

-Op.- Lt. Dee. 2, 1965, 9.1255.75 -.. 2... MEAT Kee RTOs “11

~~ Op. Lt: Nov. 26, 1965, 1255.78 ....... Peper | ah

Op. Lt. Jan. 11, 1966, 9 1255.80--977.. ow. 11

Op. Lt. Feb. 24, 1967, LRX 2135 ........°....... 20

Op. Lt. Sept.'13, 1968, 16,900.31 .............. 19

Mat a a RD See eS te

“2... @ ae

CCH, Labor Law Reporter, Equal Employment Oppor-

tunity ‘Cominission Decision No. 70- 45 July 18, 1969,

MD Se asteesinvececcusessess cehahattaewke cies as 19

‘*Pension & Profit Sharing” Report Bulletin 4, May 12, -|

WU ci dakes sou vereneds CALETA EDI NG See tee OP 17,18

Seavey, Law of. Agency, § 75 p 12 (1964 ae Po ee 15

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-IN THE

Supreme Court of the United States

_ OcroBER TERM, 1971. ‘

‘DREWRYS LIMITED U. S. A, INC. AND LOCAL UNION NO.

- 275, INTERNATIONAL UNION OF UNITED™ BREWERY,

~ FLOUR, CEREAL, “SOFT DRINK AND DISTILLERY

WORKERS OF AMERICA, AFL-CIO;

ees f eS Ailes Petitioners, 7

i ie ee .

- 3 ANN BARTMESS, ' ay

Yespondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS —

FOR THE SEVENTH. CIRCUIT. 3

Petitioners pray that a writ of certiorari issue to review |

the judgment of the United States Court of Appeals for the

Seventh Circuit entered i in: the above- -entitled case on July

7, 1971. mie oC er eA wn

OPINIONS BELOW.

Nene opinion of the Circuit Court of Appegls i is not yet =

reported in the official reports bit is printed in Appendix

A hereto, infra. The opinion of the Court of Appeals. re?"

versed an-order of the Distriet Court for the Northern

Dfstrict of Indiana, South Bend Division which dismissed

Respondent’s complaint for lack of subject matter jurisdic- -

tion.. The order of the district court, dismissing Respond-

ent’s complaint is not ‘officially reported; the material part

of the order as reflected ‘by the record is printed i in Appen-

dix A hereto, infra. aoa sees ht 2

A — 2

- -

‘JURISDICTION.

The judgment of the Cireuit- Court of Appeals was

entered on July 7, 1971. The jurisdiction of this Cgurt i is

invoked under 28 U.S.C. § 1254( 1). |

STATUTES AND FEDERAL GUIDELINE.

co The stance: involved aré: Title VII ef the Civil Rights .

Act. of 1964, 42 U.S. C. § 2000e et seq., the relevant provi-

sions being Sections 2000e- 2(a) and (c), 2000e-5(a), (d)

‘and-(e) and 2000e- 12(b); the Administrative Procedure

| Act, dD ULS. C. § 706( (2)(a). Because these provisions are -

lengthy, their pertinent text is set forth as Appendix B

hereto, infra. : . < i

The federal guideline involved is the Equal Employment

Opportunity Waa (hereinafter referred to as -

EEOC) Guidelines on Discrimination Because of Sex, See- -

tion 1604.31(a) and (b), as.amended February 21,-1968, 29

C. F. R. § 1604.31(a) and (b).. The material text of Guide-

line is printed in Appendix C hereto, infra.

QUESTIONS PRESENTED.

‘The waieations presented | herein arise a Title VII of 7

the Civil-Rights Act. of 1964, 42 U.S. C. § 2000e et seq., and °

_ raise vitally important issues anent district court. jurisdic-

tion over Title VII actions and.the application of Title

VII to private retirement plans.

They represent questions: which have not been settled by

this Court and whose resolution will have a far. reaching

‘financial impact-upon not’ only the instant Petitioners but

upon all other companies and unions which have negotiated

2 .

- retirement plans that differentiate between men and women

with respect to retirement age?-

The questions presented are:.

1. Whether the decision of the Court below is in conflict

with the Jurisdictional filing x prerequisite of Section 706(d)

of Title VII of the Civil Rights Act of 1964, 42 U. S. C.

§ 2000e- o(d), Which prov ides that ‘a charge * * * shall be

filed [with the EROC] within nin@y days after the alleged .

unlawful employment practice occurred * * *,”? ( Tadhaas

added.) The district court found it was without _Jurisdic-—

tion over the Respondent’s suit beeause she had failed to

‘timely. file.a written charge with the EEOC as is required

by Section 706(d) of Tifle VII; the Respondent fited her

‘charge more than four months before the occurrence of the

alleged isolated unlawful employment practice complained

of in. the district court, 7.¢., her compulsory retirement at

age sixty-two. The Court below rever "sed. the district court

_ and held that. the -Respondent had timely. invoked the

administrative process of the Civil Rights Act, as required

by Section 706(d).

2. Whether the unlawful employment practice alleged

in Respondent’s charge with *¥he EEOC is in fatal variance |

-with the allegations contained in Respondent’s complaint.

The district court found a fatal variance existed between

the charge and. the complaint and accordingly determined

it was without jurisdiction fo: hear Respondent’s complaint.

The Court below reversed the district, court; finding no-

such variance to be present. ‘

8. Whether the Respondent is an ‘‘agerieved person”?

_ within the meaning of Section 706( (a) of Title VIT of the \.

Civil Rights Act of 1964, 42 U. S. C. § 2000e-5(a), raises

- two paramount questions :

(a) should the Respondent he estopped or heard to con-

test the legality of her retirement: since her retirement was

effected pursuant to a collective bargaining agreement

which she; through. her own duly elected bargaining agent,

» the Petitioner Union, negotiated prior to the enactment of

‘Title VII; and ee ;

(b) should the Respondent be deemed to have waived

any‘rights to claim a:loss’as a result of the plan from

which she derived and accepted benefits?

* The decision of the Court below fails to treat and dispose

of either of these two important questions; this oversight

‘is surprising in view of the fact that the Court below posed

questions bearing upon the issue of whether the Respond-

ent:should be heard to complain.about an agreement which

* her own elected bargaining agent negotiated prior to the

enactment of Title VII. *

4. Whether it can be concluded that Congress intended

Title VII to prohibit sex differentials in retirement plans

notwithstanding the available legislative history and the

statements of Senator Hubert Humphréy, Floor Manager

of the Civil Rights Bill of 1964, that Title VII was not

intended to impair existing retirement: programs. The

Court below answered ‘the question affirmatively.

5. Is the Equal Employment Opportunity Commission’s

Guideline. on Discrimination Because of Sex, as amended

February 21, 1968; 29 C. F. R. 1604.31, arbitrary and eapri-

cious and should it have been given retroactive application.

as to some firms, unions and employees and not others? In

‘addition tothe serious question of selective and discrimi-

natory retroactive application of the Guideline, there is an’

equally important question as to whether the Guideline ‘

should be applied retroactively or prospectively. The Couft

helow held that the Guideline was not capricious notwith-

standing its built-in grace period which had the effect of °

temporarily insulating certain companies and unions from

charges alleging sex discrimination in their retirement

5 f

plans; the grace period necessarily afforded these. select

companies and unions an opportunity to adjust their re-

tirement plans so as to comply with the Guideline’s pro-,

nouncement that Title VII was intended to prohibit sex

differentials. in retirement plans. The Court below com-

pletely ignored the critical question of whether the Guide-

line should be given retroactive effect.

STATEMENT OF THE CASE. *

The apposite facts and land caaenated in this case

are not disputed and may be summarized 1 in the following

“manner.

The Respondent was a former non-supervisory employee

of the Petitioner Drewrys Limited U. S.A., Inc. and was a

member of Petitioner Local Union No. 275, International

Union of United Brewery, Flour, Cereal, Soft Drink and —

Distillery Workers of America, AFLiCIO. .

During all periods of time relevant to this application,

the Petitioner Union was the exclusiv® bargaining agent .

for the Respondent. Pursuant*to a collective bargaining

agreement negotiated by the Petitioners, a retirement plan

was adopted and became effective on May 1, 1955 wherein

it was agreed that. female employees of the Petitioner

Company were to retire at age sixty-two and male em-

ployees were to retire at age sixty-five. Like all other

’ similarly situated employees and union members, Respond-

ent was subject to the terms and conditions of the retire-

ment program. ~

On February 16, 1967, approximately dit and one-half

months before Respondent’s retirement, she filed an admin-

istrative charge with the EEOC; in essence, the charge

alleged that the Petitioners were committing an unlawful _

employment practice in violation of Title VII of the Civil

Rights Act of 1964 by maintaining a retirement program.

which diseriminated*‘against lier because of her sex.' On

June 80, 1967, Respondent passed her sixty-second birth-

‘day and was retired pursuant to the terms and conditions

of the retirement. agreement.

On February 21, 1968, more than one year after Respond-

ent filed her charge with the EEOC and approximately

five and one-half manths after her retirement, the KKOC

issued Guideline Section 1604.31(a),-Guidélines on Dis-

crimination Because of Sex, as amended February 21; 1968,

29°C. F. R. § 1604.31(a), wherein the EKOC declared that—.

‘“(a) a. differenée_in- optional-or compulsory retirement

ages baséd on sex violates Title Vil fof the ¢ ‘ivil Rights

‘Act of 1964].”” . |

‘Subsequently, on April 7, 1969, after serving notice of

the charge on the Petitioners and after conducting an

investigation of the charge,.the EEOC rendered a decision

on the ‘charge; it ruled that there was reasonable cause —

- to believe that the Petitioners were committing an unlawful

- employment practice in violation of ‘Title VIL by maintain-

ing a retirément plan which discriminated against the

Respondent because of her female sex.

Thereafter and pursuant to Seetion 706(a) of Title VIT,

422 U. S.-C: § 200Qc-5(a), conciliatory efforts were under-

taken me Neha unable to reach an agreement that wa

mutually satisfactory to the parties, the KEOC ich

Psiibiisnaagy by suit letter — Kikovane 23, 1969, ‘that

1! The EEOC’s April 7, 1969 decision in. this case gives ‘an

accurate capsulation of the: import of Respondent ’s charge of

February 16. 1967 and reads as follows:

Charging Party alleges that { Petitioner] Rvcsesdens Em-

plover. and [ Petitioner] Respondent Labor Nreanization have

cominitted and are committing an unlawfuk employment prae-

tice in violation of Title VII-of the Civil Rights Act of 1964

hy maintaining,a retirement plan which discriminates against

her because of her sex (female).

pursuant to Section 706(e) of Title 42 U. Ss: c, § 20000- 5(e),

she was entitled to institute a civil action in the district

court on the basis of her, administrative charge.

On November 20, 1969, the Respondent, by her attorney,

filed her complaint in the district court. The complaint was:

bottomed on the Respondent’s retirement which she alleged’.

violated her civil rights under 42 U.S. C. § 20000-2(a)

and (c). | ' |

In respors®o the complaint, the Petitioner € ompany and

Petitioner Union respectively moved to ‘dismiss’ and for

summary judgment on the theory that the trial‘court lacked

- jurisdiction over the matter because. the Respondent had

failed to duly and timely file her written charge with the |

_-EEOC as required by Section 706(d) of ‘Title vil, 42

U.S. GC. § 20000- 9(d).

eae upon leave of the ‘trial ae the Peti-

_tioners joined in an Amended. Motion to Dismiss which

alleged three distinct grounds upon which the action could

be dismissed: 1) that the trial court did not have subject

matter jurisdiction over Respondent’s complaint because

she had failed to comply with the jurisdictional filing Yre-

quirements. of Section 706(d) of Title VIT, 42 U. S..C.

$2000e-5(d); 2) that Congress did not intend Title VII

‘ of the Civil Rights Act of 1964 to apply to retirement

plans; and 3) that § 1604.31 of the EEOC’s Guidelines on

Discrimination Because of Sex is arbitrary and capricious

‘and that the Guideline should not be applied retroactively

to charges filed prior to the effective date of the Guideline.

The district court dismissed Respondent’s complaint, and

_ as noted in the opinion of the Court below, the trial court’s

dismissal was premised upon the finding that Respondent ©

had failed to,duly and timely file a written charge with the

EEOC. In addition to the district court’s finding that the

_ Repondent had failed to invoke its jurisdiction because of -

Sie PLS PE IE PO OH SS FR BO a EP 8 ST OOP wo Fb eR. Ws OE

‘3. . .

her failure to comply with the jurisdictional filing pre-

requisites of Section 706(d), the. trial court also: recognized

—-—that it did not aequire subject matter jurisdiction over the

‘ause of action because the charge filed with the I KOC was

in fatal variance with the’ complaint.

Respondent appealed the trial court’s order of dismissal

to the ¢ ‘ourt, below.” On July 7, 1971, the Court of Appeals,

in an opinion by Senior Circuit Judge KF. Ryan Duffy,

reversed the dismissal onder, specifically holding that the

district court had jurisdiction over Respondent’s suit, that

Congress intended Title VIL to encompass retirement

plans, and that Section 1604.31 of: the HKEOC’s Guideline

is not arbitrary and @ apricious,

On July 28, 1971, Petitioners filed a motion to stay the

issuance of the mandate, pending the filing of this petition

for certiorari., The Court below, by order dated August

1971 which was received by Petitioners on August 3,

1971, granted the Motion For Stay of Mandate’ for a’

period of thirty days.

° REASONS FOR GRANTING WRIT.

The sie cision of the Court of Appeals below should be

reviewed because it. passed upon important threshold Title

VILE questions which have not been settled by this Court.

The ultimate resolution of these key issues will have a far-

e e . ° ° ed e *,°

,reaching financial impact upon not only the. Petitioners

in the instant case but: upon the host of other companies

and unions which have negotiated retirement plans that

differentiate between men and women with respect to retire-

ment age.

Exemplifying the broad econamic effect this decision

may have upon similarly situated companies and unions are

two recent- telephone ‘calls ‘which the attorneys for Peti-

tioners received from legal counsel for‘ two very large,

nationally known employers. The ‘attorneys for these two

concerns indicated they were following this éase with great

interest since their respective clients maintained retirement

plans similar to the one‘under review. Like the Petitioners,

these firms face potential large back pay suits by employees

who were retired pursuant to plans negotiated’ before the

1964 enactment.of Title VII and before. the KKOC’s 1968

pronouncement that Title VI prohibited these plans. There

are countless other companies and unions who maintained

similar plans and for whom Ahis decision will have substan-

_ tial, if not disastrous, financial significance.

, In addition, and aside from the j issues of first impression,

the decision of the Court below should be reviewed because’

it contains holdings which are arguably in lict with the

decisions of other Circuits and because 4 gratens ex- ©

press statutory mandates. Moreover, the decision of the

Court below should be reviewed See it sidesteps -and.

leaves undecided cer tain difficult and-fundamental questions

raised by the Petitioners ; Petitioners submit that had the

‘Court of. Appeals sasaidhicnnd these questions it would not

have reversed the dismissal of the district court.

1. The reversal by the court beléw of the trial court’s

' dismissal of Respondent’s complaint makes a travesty of

and is in conflict with Section 706(d) of Title VII, 42

u, & ©. § 20000-5(d) which provides that a charge shall

be filed within the EEOC within ninety days after the al-

leged unlawful employment practice occurred.

It is well settled that compliance with the ninety. day

filing mandate of Section 706(d) is a jurisdictional pre-

condition to the commencement: of a court action. See,

e.g., Choate v. Caterpillar Tractor Company, 7th Cir., 402

.F. 2d 357, 359 (1968) ; Fore v. Bouthern Bell Tel. d Tel. Co.,

293 F. Supp. 587, 588 (W. D. N. C., 1968) (‘It is true

that the statute [§.706(d)] requires the person aggrieved

;

10 Lay >

to file-a writter charge witMin 90 days; it’ says: sO clearly, :

and the courts so hold.’’)

By Par: iwraph 9 of ‘the confMaint, the Respondent ac-

knowledges and admits that. she filed her written charge

with the EEOC ‘prior’? to the t termination of her employ-

ment on June 380, 1967. Respondent’s ‘complaint is bot-

~ tomed on and seeks redress for. the single,’ isolated event

of her compulsory retirement on’ June 30, 1967, an event

which occurred after the filing of her charge with the

EEOC. U nless the complained of event of her compulsory

retirement is considered a continuing «violation, Section

06 (d) requires that Respondent*must have filecl her charge

with the EEOC within ninety days after the occurrence. of

the alleged unlawful retirement.

Petitioners readily agree that: in a vace where there is a

“continuing violation’’ alleged the ninety days filing man-

date of Section 706(d) is suspended’ and not applicable.

EF. g., Cox v. U.S. Gypsum Company, 7th Cir. 409 F. 2d 286

(1969). ae

Under the salient facts of the instant ease, pendenk’s

action is not insulated from dismissal under the ‘continuing

violation’? theory beeause her coi:pulsory retirement, the

sii upon. which the ssi com is premised, was .not a

‘secontinuing act?’ or a ‘continuing violation’. Rather, ’

the compulsory retirement was a completed act when

__-effected and is in the nature of a lavoff, it discriminatory

f. ae Paragraph 9 of ‘the Re ssponde it’s ‘complaint states that :

On February 16, 1967, prior to the commentement of this

action, and prior to fermination of her employment, * * *, the

[Respondent] plaintiff charged in writing under oath that

| Petitioner] Drewrys and the [Petitioner] Union * * * were

engaging in an unlawful employment practic e in violation of

Title. VII of the Act alleging maintenance by [Petitioner |

Drewrys and ‘the [Petitioner] Union of a ‘retirement: pian

which discriminates against her hecause of her female sex,:

which said written charges under oath were duly and timely.

filed with the Equal Employnient Opportunity Commission

-as required by the Act. (E mphasis added. )

oS:

oye |

»? recall, ; a discontinuance ¢ of aw rork sivitaeiiand ora transfer.

Both the General C ounsel for the EEOC. and the courts have

held that the aforementioned unfair, employment practices

do not constitute continuing violation’s See, Burney v. North

American Rockwell Corp., 302 F. Supp. 86, 92 (C.D. Cal.,

_ 1969); Hutchings v. United States Industries, Inc., 309 Fy

Supp. 691 (KE. D. Tex., 1969); Younger v. Glamorgan Pipe

Foundry Co., 310 F.Supp. 195 (D. W. Va., 1969); the

General Counsel’s Opinion Letters have ruled that a trans-

fer is not continuing (Op. Lt., Dee. 2, 1965), that the dis-

continuance of a work assignment is not continuing (Op.

Lt., Nov. 26, 1965), that ‘a layoff or discriminatory recall

is not-continuing (Op. Lt., Jan. 11, toe CCH Employment

Practices Guide, 1 1255.75, .78 and..

Because Respondent *s compulsory retirement does not

constitute a continuing violation, it-is clear that she did not

have standing to file a charge on the basis of her actual

retirement until it oe¢urred or June 30, 1967 and that the

ninety days, filing requirement of Section 706(d) is oper-

ative. To satisfy the jurisdictional prerequisite of Section

706(d), Respondent’s complaint, which is premised on and.

seeks redress for-her alleged unlaw ful retirement, must

“he founded ona charge which was filed within ninety days’

after the oceurrenee of-her retirement.

% ¢

Since Respondent’s charge was filed more than four i

~ months before her retirement.and not within ninety days

after the alleged unlawful retirement, she failed to timely

“comply with the filing requirement«- of Section 706(d). — .

Clearly, the distr ict court properly dismissed the employee’s

action on the basis of lack of juriscction, and the Court BY.

of Appeals er red in reversing that decision:

2. Petitioners also submit that in addition to, the juris-

dictional bar created by Resporident’s premature filing of © |

the charge, there is yet another equally significant and con-

—

eh ot $i

~ 12,

terminous jurisdictional barrier to Respondent's suit which

the Court below -failed to recognize.

Petitioners submit that the deeision “of the Court of. -

Appeals is erroneous and ‘in conflict with the’ weight -of

authority i in ‘that it fails to comprehend the fatal variance

which exists between the charge. filed with the EEOC and

the complaint. filed in the trial court. |

The nature of the unfair ‘employment; practice set forth

in Respondent’ s EEOC charge is substantially different.

and materially. varies from the. ‘allegations contained : it

Respondent? s complaint. The ch: arge addresses itself ait

tothe alleged continuing Title VII violation of maintaining

a retirement plan which differentiates between males and

females with yespect to retirement age. The complaint,

on the other“hand, is fundamentally premised upon and

seeks redress for the alleged’ noncortinuous Title Val viola-

tion of Respondent’s own actual retirement. U nderpinning

this varianée is‘the fact the charge and the complaint invoke:

wholly’ different remedial considerations. Respondent’s

charge. before the EEOC. attacks the general validity of

an allegedly | discriminatory retirement -plan. and inferen-

tially prays for injunctive relief -while the complaint in

the district’ court seeks individual-redress in the form of

monetary remuneration and personal indemnification.

Where, as here, the allegations of the complaint do not $

fall within the scope of the charge, it is uniformly held .

that the trial court is without subject matter jurisdiction.

Mickel v. South Carolina State Employment Service, 4th

Cir.; 377 E. 2d 239, cert. denied, 389 U: S. 877, 88 S. Ct. 177,

19 L. Ed. 2d 166 (1967); Edwards v. North American

Rockwell Corp., 291,F. Supp. 199, 203-04. coe , 1968) ;

Allen vy. Lockheed- Georgia Company, 61 L. C q FID (N. D.

Ga., 1968). = |

Respondent’ s retirement oceurred after she filed her

roc charge. "Thus, the very premise of Respondent’s

+ complaint was not and could not have been included in her:

charge to the EEOC and ‘as} stated in Edwards v. North

American Rockwell Corp., supra at 203: $y

“

Any allegations in the complaint elena: to matters ~

occurring after the filing of a charge must necessarily

be considered as allegations -concerning which no

charge, has: been -filed for purposes of: this. Court’s

subject matter jurisdiction: (Emphasis added.) .

- The effect of the reversal of the trial-court by the Court.

. Welow-is to permit.a material variance between the nature

of the charge and the complain and to allow the charge’

and the comptaint to invoke wholly different. remedial _¢6n-

siderations. ‘To so condone | the «commencement of a civi

suit founded upon allegations not contained in the-chargé

‘is to invite an allegedly: aggrieved person to bypass the

filing requirement of Section 706( (d). and to avoid the con-

‘ciliation efforts of the EEOC, as’ provided for under See-

tion 706( a), 42. U. S.C. § 2000e-5(a). This Court should

now speak out to restore the 5 sanctity of these. statutory :

provisions and to-protect the statutory scheme’ Congress *

established to resolve alleged Title VIT violations. :

3. The, decision of the Court below completely ignores

and -sidesteps the diffieult.but equitably based question of |

whether, the Respondent should be estopped and not heard:

to complain that she is ah ‘aggrieved person’? within the -

meaning of Section er of Tifle Vil, 42 U.S.C. § 2000¢0-

° 5(a). es

__ Pekitioners raed by brief and on oral argument in the

Court below that Respondent should not be heard to contest °

her retirement since it was effected pursuanit to.a collective

bargaining agreement which was adopted several years be-

fore the enactment of Title VI Sasa cute of negotiations

by Respondent? s own duly elected bargaining agent, the

Petitioner Union. Additionally, Respondent derived and

accepted benefits from the plan she now challenges.’

Petitioners submit that under this posture of facts the

Respondent is not an aggrieved —— and should. be

SY ™

3. he Putioman are aware of the cases which hold that Title

“Vv II, notwithstanding its prospective application, applies to situ-

ations. where there are ‘‘present and continuing effects of past

discrimination —[pre-1964 discriminatory a¢ts.].’? E.g.. Grigas

Vv. Puke Power Company, 4th Cir., 420 F. 2d 1225, 1230 (1970).

rev'd on other — 400 U.S. 813, 95 S.Ct. 849, 28 L. Ed; 2d

158, ~

The above rule is highly unfair’ when Gpplied “to. the facts -

of this case since at the time of. the passage of the Act many organi- -

zations like these Petitioners were posited in the unenviable posi,

tian of not knowing whether. Congress intended Title VII ‘to

enco@pass retirement. plans. They were left in this unpleasant

limbo from the tithe of the passage.of the Act in 1964 to. 1968

interim, Petitioners were forced between the horns of dilefima

Tf they had proceeded to abruptly amend. the retiremept plan

in 1964 +o equalize male and female retirement ages, they faced

when the. EEOC jssued its Guidelines. 1604.31(a). oh A

“the possibility of law suits and discontent. by females who had .

relied on a retirement at age sixty-two. Failine to amend th

.plan-in 1964 meant: risking Title VII violations if the EEOC

should later decide Congress intended the Act to apply to retire-

ment and pension plans. Consequently, the Petitioners were truly

locked -into a position where there were, no alternatives to avoid

the hazard of law suits and employee discontent. ‘This. dilemma

“could have been eliminated had the EEOC taken an. immediate

‘stand on the issue of whether, Title VII applied to ‘retirement

programs.

Under these cireumstances, the Petitioners. invite . this Court.

as it did the Court below, to carye out an equitable exception to, .

the harsh general rulé that-Title VII applies. to preseift and con-

tinuing effects of lawful pre-1964 activities. Such an equitable

exeeption could be limited to situations where, as here. the unlaw-

ful present ‘consequences of lawful pre-1964 activ ities are the direct

and proximate result of the EEOC’s failure to issue directive |

guidelines relative to legitimate questions anent the application.

.and seope of Title VIT.

Under the existing circumstances, a failure to carve out a

needed equitable exception ta the above rule would be tantamount

to holding the Petitioners responsible for the results of i an agency

delay in issuing an administrative guideline.

¢>

ae See

LATER I ten dd ES RDO AE VA aca Stes biitriek ceteacame

precluded from attacking the plan her agent negotiated

and should be deemed to have waived her rights to claim

a-loss as a result of thie plan from which. she derived: and

se eee benefits. To this end see Seavey, Law of Agency

$75 p. 127 (1964 ed.) wherein it is stated that where ‘‘a

ee [such as the Respondent] invites third persons

[the Petitioner: Company] to del with an agent [the Peti-

tioner Union] on terms which will be given by the agent, he

is bound by the terms as stated by the agent.’’ Accord-

ingly, the Respondent should be bound by the terms of the

retirement plan and not permitted to complain of its al-

leged unlawfulness. ‘Cf, ‘Singer v. A. Hollander & Sons,

Inc., 3rd Cir., 202, F. 2d. 55 (1953).

The failure of the Court of Appeals to treat and dispose

of these troublesome contentions -is surprising in view of

the fact that the bourt intimated by its questions during

_ oral arguments’ that it was bothered by the underlying

‘equitable question of whether Respondent should be heard

‘to Complain ofa retirement plan her agent negotiated and

adopted long before the enactment of Title VII. To ‘con-

tinue to leave this issue undecided is to sidestep the fun-

damental question of whether Respondent’ had cause to

file suit in the instant case and to permit her to reap an

= unexpected, windfall. by the fortuitous event of the passage

of the 1964 Civil Rights Act.

4. ‘This case presents sqitpely the economically far-

reaching i issue of whether Congress intended Title’ VII of

the Civil Rights Act of 1964 to apply to retirement and

pension plans. |

Research has | revealed only one: other ‘Feoontly reported |

decision which rules:on. this threshold i issue, The issue was

decided in Rosen ¥. Public Servi ice Electric €.Gas*Co., ...........

F. Supp. ........... , 2 FEP cases 1090 (N. J. 1970); the New

Jersey district court upheld: the EEOC’s 1968 Guideline

that Congress intended ‘Title VIT to encompass retirement

plans.

In holding ‘Title VIL prohibited sex differentials in: re-

‘tirement plans, the Court below placed great relianee on

the Rosen ease and the general principle that administra-

tive interpret: itions of statutes, such as Guideline 1604.3],

are entitled to great defexence;

For cogent reasons not adequately considered in’ the

New Jersey decision or the opinion below, the, Petitioners

submit that, the conelusion: reached in these two cases is

erroneous and should be overturned a this Court.

' Fivst, the reliance of the Court of Appeals on the gen-

eral ‘prineiple that an administrative construction of a

statute is entitled to special weight is inapposite to the

instant case. That prineiple does not apply where, as here,

the ageney's Interpretation is rot based upon its own aceu-

mulated knowle Ige and experience and where, as here, the

interpret ation is neither continuous nor contemporaneous

with the enaetmé nt of the statute. L.g.. Drew v. Lawrimore,.

257 F. Supp. .659 (S.C. 1966), rer’d on other grounds,

4th Cir, 3880 F. 2d 479 (1967): Jess vy. Esperdy, 234 F.

Supp. 909 (S. D. N. Y., 1964). Tt certainly cannot be con-

eluded that. Guideline 1604.31 was either continuous or

contemporaneous with the 1964 enactment of Title VIL

since it was issted almost fowr years after the passage of .

Title VIT: nor can it he said that the Guideline was prom-

ised on the accumulated knowledge of this youne : iweney.

In @eiding whether Congress intended Title VIT' to

apply’to retirement plans containing sex differentials, it

is instructive: to note. that none of the Aet’s provisions

§pecifieally prohibit su¢h- differences nor, do any of the

Act's provisions provide that retirement programs. are

within the statutory purview of Title VII.

Despite the broad language of Section 703(2) and (ce) of

Title VII, the distinct absence of any such provision in

Title VII is strong evidence that Congress did not intend

Title VII to encompass retirement programs. At the time:

SENG AO SEI aE 1 Ot CEES hse MRED a el Slee eee

o Title VIT’s' enactment, Congress was cognizant of the

fact that many private retirement plans, state laws and

federal retirement programs accorded different treatment

‘to mile and female employees: with respect. to retirement |

ages and benefits. His logieal to: conclude that if Congress _

had intended to disrupt the operation of the various exist-

ing retirement programs, if would have specifics illy - pro-

vided in its legislation that Title VII bars sex ‘differentials

in retirement plans, or at the very minimum, Congress

would have indicated that Title VII generally applies to

private retirement pl: ins. ce

To contend that Congress intended to inferentially upset

longstanding retirement’ plans by its enactment of Title

_VIT is Indic ‘rous, when it is recognized that many existing

federal programs contain sex differentials.!

A recent case on point is Gruenwaldv. Gardner; 2nd Cir.,

290. 1, 2d 591 (1968), cert. den., 393 U. S. 982" (1968). ti

that case the court held that there was no merit in the

contention that the sex inequalities in the social security

retirement benefit program violated Title VII of the Civil

Rights Act of 1964, |

A review of the legislative history of the Act, as reported

in‘the 1964 U.S. Code Cong. and Adm. News, p. 2355, et.

seq.. Sheds little light on the specifie issue of whether

Congress intended Title VII to bar sex differentials’ in

retirement plans. A ‘strong indication of, Congressional

intent can be garnered, however, by a review of ‘a letter

from Senator Itumphrey, Floor Manager of the Civil

Rights Bill in 1964. Humphrey’s letter, Segments of which

are set -forth in the Prentice Hall ‘Pension and Profit

Sharing’? Report Bulletin 4, May 12, 1969, stated that ‘It -

would be a gross distortion of the provisions of Title VII.

to apply this language 1 in a manner. which impaired. existing

4. E. oe the Social Security Act, the Railroad Retirement Act.

and the Federal Civil Service Act all contain provisions affording

. different treatment to men and women. F

-¢ .

pension, retirement, or benefits programs.’’ Report Bul-

-letin 4, supra, also notes that ILumphrey stated on the

floor of the Senate ‘that it Was- ‘unmistak: bly clear’ that

earlier retirement options for women could continue in

operation under the Act.’’ aS,

‘Thus, in light of the’ available legislative history, and

with the knowledge that federal retirement programs treat

men and women differéntly, and in view of Congress?

failure to specifically bar sex differentials in Title VII, it

was erroneous and unreasonable for the EEOC, the Rosen

"ASC, and the Court below to- construe Title VII to prohibit

_sex differentials in existing private retirement plans. -

The decision below amounts. tos judicial legislation for

it‘earries Title VIL far beyond its Congressionally intended

function and into the area of retirement plans. It is for

Congress and not the Courts or the EEOC to decide whether

sex differentials in retirement plans should be prohibited.

This Court should grant certiorari to consider two

‘important issues of first impression. The first’issue relates

_to whether the EEOC’s Guideline on Discrimination Be-

cause of Sex, 29 C.F. R. 1604.51, is arbitrary and capri-

cious with the meaning of Section ee A) of the Ad-

ministrative Proeedure Act, 5 U. S. C. § 706( 2) (- A); the

second issue raises the ‘difficult Nae of whether the

Guideline. should be given retroactive effect.

The Court below completely ignored the retroactivity

issue and disposed of the first issue in a very’ cursory

fashion by holding that the Guideline was. not capricious

notwithstanding its built-in grace period which arbitrarily

afforded some firms temporary insulation from ane VII

ch arges.

D. “The “EOC Guideline, issued four years after the passage of

Title VIT, pronounced that sex differentials in retirement plans

were Violative of Title VII.

PME IS i Df NO NT AN IN NS +, ° a

Petitioners submit to .this Court that the Guideline rep-

resents the very zenith of arbitrariness and capricious-—

ness. It provides that: Title VII shall be applicable to

charges filed before. February 21, 1968 (date on which the

Guideline was issued) and to charges filed after its effec-

tive date of July,1, 1968 (subsequently changed to October,

1, 1968) -but will be inapplicable to charges. filed -after

| February 21, 1968 and prior to October 1, 1968. EEOC

~ Decision No. 70-45, July ‘18, 1969, CCH Labor Law Re-

porter. {] 8089, a this interpretation of the Guide-

-line.®

This grace period aftoraea to some companies by the

Guideline and not others lacks a rational basis, offends all

notions of justice and equal treatment and clearly should

_be held arbitrary and capricious under Section 706(2) (A)

ofthe Administrative Procedure Act. It makes no sense to

hold that Section 1604.31(a) is applicable to charges filed

-before:the date of its issuance and inapplicable to charges

filed after its.issuance date and prior to its effective date."

In addition to the question ‘of whether the Guideline is

arbitrary and capricious, there is the equally significant

issue of whether the Guideline should be applied retro-

actively to charges filed before the ‘Guideline’ s issuance

date. In failings to rule on this retroactivity issue, . the

6.- If Congress did intend Title VII to apply to retirement

' plans, then how can the EEOC constitutionally, legally or equitably

insulate some si nk and unions and not all by administrative

fiat ?

7. Further: ‘eomponnding the confusion is the fact that General

- Counsel issued an Opinion Letter on’ September 13, 1968, stating

‘that Title Vil ‘would permit * *.* gradual adjustment?’ of

existing retirement plans that prov ide for earlier optional retiré-

ment of women. How can one reconcile the Commission’s position

that .Seetion 1604.31(a) definitely ayplies to charges before

February 21, 1968, and after October 1, 1968, with the Commis-

sion’s opinion*letter that Title VIT+«permits gradual adjustment

of existing retirement plans?:Op. Ltr, 9/13/68, CCH Employment

Practice Guide | 16, 900. 31. . :

’

OF DOP IRAE EE a oho

Court below inferentially condoned retrospective applien:

tion of the Guideline.

Petitioners vigorously urge that itis an abuse of disere-

tion to apply, Tithe VIT to charges filed before the Guide-

line’s issuanee date, February 21, LOGS, 7

While the EEO Guideline does not have the binding

foree or effeet of law, American Newspapers Publishing -

Association v. Alexander, 294 BF, Supp. 1100, 1108 (D. D. C.

1968), it is in the nature of a new policy to the extent it

officially establishes for the first time that the HKOC-

would apply Title VIL to retirement plans w hic h provide

different option: al or compulsory retirement ages for male

and female employees. Prior te the Guideline, the HKHOC

had not established a definitive poliey relative fo whether

Tithé VIL applied to retirement pl: wis CP, Air Transport |

Association of America,’ ‘ Heritande: 4 Supp. 227,

229 (DD. D.C. 1967 ) "taliete Pie ny ae its adminis-

trative nomenelature, it la Commission interpretative

Guideline} has the effeet of? law. igs F .

The “first rule of construction is that iniatition. must

be considered as addressed | to the future, not to the past:

a ees land] a retrospective operation will not be given to a

statute which interferes with antecedent rights * * * mless

such be ‘the unequivocal and inflexible import. of soa

terms, and the inanifest intention of the legislature.’

_Fnion Pac. R. Co. v. Laramie Stock Yards Co., 231 U. 8.

190, 199 (191: 3). See also, Greene v. U nited State 8, B76 TLS.

8. The’ only EE oc - indication whic h Was av ailable befor e the

issuance of the 1968 Guideline with respect to the question of

whether Tithe VII applied to retirement: plans Was the 1967 Gen-

eral Counsel's Opinion Letter to the effeet «that Title VII did

not apply to the Railroad Retirement Act’s disparity in retirement

ages’ for male and female employees. | (Op. Lfr., February 24. 1967

LRX 2135.) Accordingly. Petitioners are arguably insulated under

the authority of Section 713(b) of Title VIT. 42 U. C. § 2000e-

12(b), from any liability ad the alleged unlawful: aaa of

Respondent.

“N

21°

149 (1964) (wherein the Court held that it was ‘‘unjusti-

fiable’’ to give a°1960 Department of Defense regulation

retroactive, Cifeet). .In Thorpe v. Housing Authority of |

Durham, 393 US. 268, 280 n.385 (1969) this Court stated

‘there is no reason why the principles that control legisla-

tion that affects contractual. rights should not also control

administrative rule making that affects contractual rights.”’

In determining whether an administrative ruling - or -

finding should be given retroactive effect, the’ reviewing

court should test to) see whether “the practical operation |

of the * * * change of policy * * * [will] work hardship

upon respondent altogether-out of proportion to the public

ends to be accomplished. ? NLRB v. Guy F. Atkingon Co.,

_ 9th Cir, 195 Ff. 2d 141, 149 (1952). See also, Securities aud

Bihan Comm, v. Che ney Corp., 332 U.S. 194 (1947) ;

NLRB vit CB Brewing Company, 6th Cir., 276 F. 2d 594

(1960), cert. den. 366 U.S. 908. The Court below failed to

> decide the question of whether the Guideline should be

given retroactive application, and by so failing, it inferen-_

tially approved of retrospective application. ‘

Without question, retroactive application of the Guide-

line: works hardships on the’ Petitioners altogether ‘out of.

proportion to the public ends to be accomplished ; it gives

¥ Respondent _an unexpected windfall by penalizing Peti-

tioners for conduct they had no way of knowing was viola-

tive of Title VIT. ‘It is this sort of thing our system of law

abhors.’? NLRB vy. Guy F. Atkinson Co., supra at 149.

Beeause of the sweeping financial importance of this

question to the numerous. firms and unions who retired

_ employees pursuant to similar retirement plans, this C ‘ourt

should grant certior ari and avoid having the issue decided .

by inference as a result of the lower court’s failure to pass

upon. the question. . ; eae Pie at

a ees eee

cs ma) °

SRILA a+ Ae eed Se ze i tale OBE .

: - GONCLUSION.

For the reasons aforesaid, it is respectfully prayed that

a writ of certiorari be granted to review the judgnient of

the United States Court of Appeals for the Seventh Cir-

cuit. | at <

. Renpectfully submitted;

James W. Operr ELL, “

CRUMPACKER, May, Levy & SEARER,

224 West Jefferson Boulevard, YF

South. Bend, Indiana 46601,

Attornéy: for Petitioner, Local Union No. 275,

International Union of United Brewery,

Flour, Cereal, Soft Drink and Distillery

Workers of “neriea, AFL-CIO,

“WarRREN E.. McGuu,

THORNBURG, McGILL, DEAUL, HARMAN,

Carey & Murray,

645 First Bank Building,

_ South Bend, Indjana 46601, _

Attorney for Petitioner, Drewrys

Limited U. S. A., Ine. '

Of Counsel:

WarrEN A. DEAHL,

FREDERICK F THORNBURG,

TuornsurG, MeGitt, Dean,

Harman, Carey & Murray,

645 First Bank Building,

’ South Bend, Pie 46601.

\ 2

2 RPI a 1S SALINE NCO SELLE ION Oe ese —_—

ca . aes

, _ APPENDIX A.

1. COURT OF APPEALS DECISION..

In rite Unirep Sratrs Court/or ApPEALs

. _. ° or the Seventh Cireuit .

No. 18724 September Tern m 1970 — April Session 1971

Ann BarrMess, > | eee

‘Plaintiff-A ppellant, ae )

ve | Appeal from the

United States Dis-

‘trict Court for the

Northern District

of Indiana, South

Bend _ Division.

-Drewrys. 12S. A., Iye., Loca

Union No..-275, [NX TERNATIONAL >

Unrton or Unitep Brewery,

Friovur, Cereat, Sorr Drink AnD

Disrintery Workers or AMERICA,

“AFL-CIO, : i cee.

Defendants-A ppellees. }

July 7, 1971

Before Dus FFY, Senior C ircutt Judge, Puno and Cum-

Minas, Circuit Judges.

, "

Derry, Senior Circuit Judge. The plaintiff-appellant,

Ann Bartmess, was a former non-supervisory employee of

_Drewrys Limited, U.S. A., Ine. (hereinafter referred to as

Drewrys ‘or Company). “She was a member of defendant-

appellee Union, No. 275. Thé Union was the exclusive bar-

gaining. agent for Drewrys’ employees such as ‘plaintiff.

‘A retirement plan was adopted pursuant to a collective bar-

gaining agreement negotiated by the Union and Drewrys.

‘The vetirement plan became effective on May 1, 1955 where-

in it was agreed that female employees of the Company

were to retire i at age 62 and male. employees were to retire

at age 6d:

About four and a half months before plaintiff's retire-.

ment, she filed an adurinistrative charge with the Mqual

Kmployment Opportunity ~Commission (KKOC). The

charge alleged that the Company and the Union were ecom-

—mitting an unlawful employment practice in’ violation of

Tithe VEIT of the Civil Rights Act of 1964, by niinbainine

a retirement prograin which diseriminated ‘ ninst her: be-

cause of her sex.

On June 80, 1967, plaintiff passed her 62nd birthday and

was retired pursuant to the terms and conditions of the

retirement agreement.

On February 21,Ql968, more than one year after plain-

tit tiled her aoa with EEOC, and approximately five

‘and a half months after her retirement, the KKOC issued

enide tine See tion 1604.31(a) wherein it was declared ‘that

**(n) difference in optional or confRulsory. retirement ages

based on sex violates Title VIT fof the Civil Rights Act.of

1964]." aes . ;

Conciliatery efforts were under taken by the parties and,

being unable to rei ach an agreement that was satisfaetor Vv

to'plaintiff, tha EEOC ‘notified her on October 23, 1969 that

she was entitled, on the basis of her administrative charges,

to institute civil action in the District Court within a period

-of- 30 days. Plaintiff filed this suit under Title VIT of the

Civil Rights ‘Act of 1964 within that time. oo

Both defendants moved to dismiss the complaint ‘on -

three grounds; that plaintiff’ s complaint’ was not timely

filod: that the 1964 Civil Rights Act did not apply to retire-

ment plans having different mandatory retirement ‘ages

for men.and women, and that Section 160481 of the EEOC

guidelines was arbitrary and capricious. :

‘

€

s . 2 f P . “

ve \ ee a, ee

/The Distrid ( ‘ert held the only ‘unlawful practice

‘aaek here Wits. tlie actual discharge upon retirement,

and that.as plaintiff had not waited until after her retire-

meng to file her grievance,. she was barred from relief.

This appeal fotlowwed. oA

- “@ :

Eg JURISDICTION.

\ ‘heist issne before us-is 5 wteethier: ple aintiff invoked the

i adlininist rative procedure of the 1964 Civil Rights Act in a

fimely manner or whether she is now ‘barred from’ relief

because She did not wait until the actual date of her retire-

ment? before filing a charge with the BKEOC. nen

statutory provision states >

- %

“A charge under subsection (a) of this section shall

he filed within ninety: days after the alleged unlawful

“employment. practice occurred? 42 11.28. C. saan

d(«1) (Title VEL, Seetton 706(d)).

r is settled law that the ninety day limifation is no ‘bar

“when a continuing. practice of discrimination. is being chal-

Tenged rather-than a single, isolated discriminatory act.

Cod v. United. States Gypsum: 409 F.2d 289 (7 Cir., 1969).

Kpcatiocs concede that this is. the: law, but argue that the -

only. potentially. unlaw ful practice under a retirement plan

is the actual discharge and not the overall maintenance of _

the plin. We disagree, We have no difficulty in concluding

that the actual maintenance of a discriminatory retirement

enlan eah he: one of the acts which ‘adversely affect fan

individu: al’s| status as an -employee, because of. such, indi-

vidnal’s . . . sex,’? and that retirement plans should be

viewed as‘conditions of employment”’ within*the meaning

The collective bargaining agreement in force at the time

plaintiff fled her charge provided that female employees

must retire three years prior to their male counterparts. If.”

7. bee fe Fa)

such a contract is found to be discriminatory, its mere

presence in a collective bargaining agreement would render

female workers ‘‘aggrieved persons’? within the meaning of

Title VII and would continue to do so for the entire time

the individual was employed. |

This Court has consider ed the impact of a petivaant

plan’s terms on the employee’s .employment status in

‘Tnland Steel v. N. L. R. B., 170 F. 2d 247 (7 Cir., 1948),

cert. den. 336 U. 8S. 96 10, We there concluded that’ an

employee’s present interest in a plan for his retirement

was sufficient to make such, a plan an “other condition of

employment’” within the; meaning of the National Labor

_ Relations Act, even thoneh retirement, might not. take place

for many years. Likewise, we feel that an employce’s

interest *in me a plan. is sufficiently important to allow

him or her to challetige an aspect of that plan in advance

of retirement when it is believed to violate Title VIT. We

ths coustrue Title VIT in harmony with the N. L. R. A. on

this point... | ..

Appellees nivinec. a second reason why the: jurisdic-

plaintiff’s ee gan argue that the’ only unlawful

employment practice challenged in the complaint was the

termination of employment,-and that thus there is a fatal

variatice with the administrative charge, which challenged

the maintenance of the discriminatory plan as well. We find

-no such variance to he. present. °

Paragraph 8 of the complaint. mee in full:

Drewrys terminated - plaintiff’s employment pur-

suant to the terms of. a retirement program agreement

between Drewrvs.and the Union, the retirement provi-

sions of. which required compulsory retirement af

male’ employees at age 65 and compulsory retirement

of female employees at age 62; by reason of which and

thereby Drewrys: discriminated against the plaintiff, a

Ue Cece ee Re Bee Ek Ss

tional provisions of. Section 706 Shouid.-be heid to bar.

female person, because of her sex by maintaining a.

‘ - ° ak,

a {A

es,

pee eee aS eee

AD .

compulsory policy of forcing men to retire at age 65

and women to retire at age 62, and by terminating her

employment by forcing her ‘to,retire after she passed

her_sixty-second birthday which is an unlawful em-

ployment practice in violation of Title VII, Section

703(a) of the Act (Title 42, Section 2000e-2(a)), which

‘said unlawful practice was committed at South Bend,

Yndiana, within the jurisdiction of this court.

It. is clear that both the ‘maintenance of a compulsory

poli¢y’’ as well as the most immediate consequence of that

policy, e.g., the termination, were challenged in the com-

plaint. ts ‘

Since all of the other jurisdictional prerequisites of

Section 706 are present here, we find that jurisdiction

under Title -V IT is present.

WHETHER A CLaim Is Staten.

We are next called upon to dngthe whether retirement

plans containing differing treatment of men and women

with ‘respect to retirement ages violates Title’-VII of the

1964 Civil Rights, Act The only decision directly on point

has answered this oe affirmatively. Rosen et al. v.

stag Service Electric Company, ..... sina I ROM: sina (D. C..

. J. 1970) (3 Employment ‘Practices Divisions 6208) -

: Nie on rehearing 3 K.P» D. nue We agree with the

holding of the Rosen Court.

As mentioned herefofuire, we read Title VII to include

retirement plans as ‘‘conditions of employment”? just as

. they are similarly viewed under the National Labor Rela-

tions Act. Inland Steel Co. v. VN. L. R.-B., supra. Title VII: |

forbids any discrimination with respect to such conditions

of employment. Furthermore, the Act -proscrjbes classifi-

cations. by employers ‘‘. ... which would tend to deprive

any ‘individual of seve ment oo or otherwise

ee affect his status as an er ee, because of such

mie, e

“at

individual's ¢6.s BOE wu. Section 708(a) (2) {42 UL S.C.

§ 20000-2 (: n)(2) |: Similar prohibitions against such Glassi.

ficatians by labor organizations are contained in Section

703(e) (2) He U. s. C. § 2O00-2(¢) (2) |.

A plain reading of the statute jrdieates that retirement

plans which treat men-and women differently with respect

to. their ages of retirement are. prohibited. The plaintiff

“here, by v iMGde of the plan, is forced to give up three years

of work together with the money she would have earned

during that period. Such a foreed retirement is tantamount

to a discharge. Moreover, the classification of employees

on the basis of sex is, of itself, contrary to the intent of

Title VIT. Rosen, supra; Sprogis v. United Air Lines,

K.2d 0. (7 Cir, 1971—Slip opinion 18481).

In Sprogis, we recently noted that: **{i}n forbidding em-

ployers to discriminate against individuals because of their

sex, Congress intended to strike at the entire spectrum of

disparate treatment of men and women resulting trom SOX

stereotypes,’ :

sons why we should conclude that the language of Tithe VII

does not_mean what it Says. s - .

Defendants. have come forward with no rea-

Instead, defendants urge that the legislative history of

Title VIL indieates that retirement plans were not intended

to be covered when the Act was passed. We cannot agree

that such ‘an intent has been demonstrated. Defendants

rely heavily on a letter written by Senator Humphrey

stating his belief that retirement plans were not within the

scope of the Act. But this letter was written several years

after the passage of Title. VIT and has no bearing on the.

* question of Congress’ intent.

Congress ‘did grant certain’ express exceptions ‘to. the

Title VIT’s sex discrimination provisions, but exemption of

retirement plans was not one of them. The Rosen Court

faced the same question and, after a thorough study of the °

legislative history, concluded that: ‘‘[t}he debates in Con-

gress neither support nor refute Senater Humphrey’s let-

ter’? We conclude that absent sonie’ strong indication. of

legislative intent to the contrary, we must read the words

of the statute @ith their commonly accepted meanings.

Rosen, supra, at ........ We therefore hold that diserimina-

tion in retirement plans j in this case violates Title VII.

We-note further that the KE 30C guideline on retirement

‘plans (29 C.F, R. Section 1602.31(a)) states that “[a] dif-

ference in optional or compulsory retirement ages based on

sex violates Tithe VII? and that sucht wn Sf... administra-

five interpretation of the Act by the enforcing agency is

entitled te great deference.’? Griggs v. Duke Power:Co.,

401 U.S, 424, 434-5 (1971). This guideline..is consistent

with the language of the Act and we concur in it.

It does not matter for our purposes that. tie guideline

was not drafted until after this present charge was filed.

KEOC guidelines, while ‘‘entitled to great deference, *? do

not have the force of kaw and cannot abrogate rights en-

forceable under the 1964 Civil Rights Act. American News-

paper Publishing Association v. Alexander, 294 F. Supp.

1100 (D. C. D. C. 1969). : :

The relevant date when those rights became enforceable

was the effective date of the Civil Rights Act, not the. date

of the guideline. The defense of good faitli reliance on a

written opinion of the Commission available under Section

713 Of the Act is not agenaaas here. See Sprogis, supra,

(Slip Opinion, pp. 7-8).

We have reviewed appellees’ contentions that this EEOC

guideline is arbitrary and capricious: in operation and find

them to be without merit. The fact that a minimal grace

period:is adopted in the guideline does not mean that it

works capriciously with respect to charges filed prior to

that time. ~The guideline ‘could not, under the. law, have

served to, cut off claims alre: idy before the. Commission.

CRATE MDA LIES 6

The order appealed fron is reversed, and this cause is

remanded to the. District Court for a trial on the merits.

Reversed and Remanded,

2. In dismissing the Resvonient’ s complaint, the cis-

trict court stated from the beneh that : il

~The Court doesn't know any way to read this Com-

plaint-exeept that it is a Complaint filed bottomed

upon her alleged—-upon her grievance that she was

terminated beeause of the ‘provisions of this retire:

ment program,

If these guidelines that were later announced had

been in effeet. then, they might have been the subject of

ne gotiations and a termination might never have come

to pass.

* ~The Court believes that this Complaint, iiaiees .

her employment in “44; that she continues without

interruption until June 30, 1967, when she passed her

62nd birthday on which she tefminated her employ-

ment, and then i in the next paragraph they terminated

her employment ‘pursuant to the terms of ‘a program,

and that by terminating her employment, [57| by fore-

ing her to retire after she passed that birthday, they—

whieh is, she alleges, and unlawful entployment act in

violation of Title 7, and this Court, has no hesitaney,

under this interpretation of this Complaint, to hold

that she has not complied timely with the tiotice re-

quirements, filed her charge with the Kqual Employ-

ment Oppottunities Commission, as required by the.

Act, and, therefore, the Motions to Dismiss are eC ach

now granted. (Supp. Appendix, ae yO

The district court order, entered July 2, 1970, re: ads in

relevant part: | : area

Hearing had on pending motions. Court hears argu-:

ment of counsel. .Defts’ amended motions to dismiss

(Summary Judgment) are each now-granted.

"0 nited States Code provides in- material part:

AQ _ | . .

APPENDIX B.

“Seetion 20000-2(a) and (ce) of Title 42 of the United

States Code provides in material part thay:

(a) Ti shail be a unlawful a iteitcaa practice for

aun Rea we r

(1) to fail’or refuse re hire or to discharge any

individual, or otherwise‘ to diseriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s * * * sex * * *; or

(2) ‘to limit, segregate, or classify. his employees in

any way which would deprive or vend to deprive any

individnal of employmeyt opportunities or otherwise

-adversely aifect his status as an ore because of .

such, individual's * sex

a labor organization—

(1) to limit, segregate, or classify its pen wae

*** in any wiy-which would deprive or-tend to deprive

‘any individual of employment opportunities, or would

himit. such employment, opportunities or otherwise

- affect his status as an employee * * *' because of such

** * on. ag

‘individual’s sex

(2) to-cause or-attempt to cause az employer to

discriminate against an individual in violation of this

Section. .

Section 2000e-5(a), (d) and (e) of Title 42 of the

(a) Whenever it is charged in writing under oath

by a person claiming to. be aggrieved * * * that an

-emplover, * * * or labor organization has engaged in

an utilawful employment practice, the Commission shall

furnish such employer, * * * or labor organization * * *

with a copy of such charge and shall make an investiga- :

tion of such charge, * * *. If the Commission ‘shall

determine, after such investigation, that there is rea-

<1 ere teresa “e °

i. . A10

sonable cause to believe. that’ the charge is true, the

Commission shall endeavor to eliminate any sueh al- -

leged unlawful employment practice by informal

methods ‘of conference, conciliation, and_ persuasion.

** *

(d) A charge under Sub-seetion (a) of this section

shall be filed within ninety days after the alleged un--

lawful employment practice occurred * *)*, +:

(e) If * * * the Commission has teen unable to

obtain voluntary compliance with this subchapter, the

Commission shall so notify the person aggrieved and.

a‘ civil action may, within thirty days thereafter, be |

‘brought against’ the respondent: named in the charge

(1) by the p¢rson claiming to be ager ieved, ee

3. Section’ 20006. 12(h) of Title 42. of the United States

Code provides in material part: -

(b) ** * no person shall be subject to any liability

** * on account of (1) the commission by such person

of an unlawful employment practice if * * * the act or

omission complained of was in good faith, in .con-

formity with, and in reliance on any written interpreta-

tion or opinion of the commission * * *.,

. 4: Seetion 706(2) (A) of Title 5 of the United States

Code provides in material part: |

The reviewing court shall—* * * (2) hold unlawful

and set aside agency action, findings and conclusions

found to be

(A) arbitrary, ¢ capricious, an abuse of diseretion, or’.

, otherwise not in accordance = the law;

yo ov

APPENDIX C.

- The Equal, Employment Opportunity Commission’s

_ Guidelines on Discrimination Because, of Sex, Section

-1604.31(a) ‘and (b), as amended February 21, 1968, 29

that :.- cm |

_ (a) A difference’in * * * retirement ages based on

sex violates Title VII. :

(b) * * *.these interpretive rules * shall become

effective immediately and shall be spplicable with re-

spect to charges presently . before or hereafter filed

with the Commission, except that Section 1604.31(a)

will become effective July 1, 1968 [subsequently

changed to October 1, 1968] with respect to charges

her eafter filed: with the: Commission.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.