Leo Rosen, Utility Co-Workers Association and Morgan Sweeney v. Public Service Electric and Gas Company
409 F.2d 775
3rd Cir.
1969
Check Treatment

*1 775 (1963); Cramp v. Board Public Instruction, 278, 275, 368 U.S. 82 S.Ct. (1961); 7 L.Ed.2d 285 Torcaso v. Wat kins, 488, 1680, 367 U.S. 81 S.Ct. (1961); Tucker,

L.Ed.2d 982 Shelton v. 479, 247,

364 U.S. S.Ct. L.Ed.2d (1960); Schware v. Board of Bar

Examiners, 232, 752, 353 U.S. 77 S.Ct. (1957); Konigsberg

1 L.Ed.2d 796 v. Bar, 252, 722,

State U.S. 77 S.Ct. (1957);

L.Ed.2d 810 Slochower v. Board Higher Education, 551, 350 U.S. 76 S. (1956);

Ct. 100 L.Ed. 692 Wieman Updegraff,

v. 73 S.Ct. (1952);

97 L.Ed. 216 Joint Anti-Fascist

Refugee McGrath, Committee v. U.S. (1951) ; 71 S.Ct. 95 L.Ed. 817 Trussell,

Birnbaum v. (2d 371 F.2d 672 1966); Shepard, Heckler v. 243 F. Supp. (D.Idaho 1965).

Affirmed. ROSEN, Utility

Leo Co-Workers Associa Morgan tion Appellants, Sweeney,

PUBLIC SERVICE ELECTRIC AND

GAS COMPANY.

No.

United States Appeals Court of Third Circuit.

Argued Dec. April

Decided

agreement negotiated subsequent pro ceedings Equal Employment Opportunity (EEOC) by suit, the issues raised moot. Second had become ly dealing amendment appellants’ complaint, which George Duggan, Parsonnet, Parsonnet appellee-company still discrim was Newark, J., Duggan, appellants. & for N. inating pension on of sex account J., Kiernan, Jr., Newark, A. N. Luke arrangement under collective new appellee. for bargaining agreement, the court con Steiner, Counsel, Daniel Gen. Russell the latter contention cluded that because Specter, Counsel, Lewis Col- Asst. Gen. subject of a had never been matter lens, Employment Atty., Equal Oppor- EEOC,2 the court filed with tunity Commission, C., Washington, D. jurisdiction.3 lacked amicus curiae. Sweeney Rosen, appellants, The SEITZ, Before ALDISERT Association, Utility certi Co-Workers STAHL, Judges. Circuit bargaining representative for about fied 1,800 appellee, 15,000 employees of OP THE OPINION COURT Company, Electric and Gas Public Service charges STAHL, Judge. the EEOC filed in 1965 with Circuit committing alleging was This is from an order of the employment practice within unlawful granting appellee’s district court motion Rights meaning of Title VII of Civil judgment summary for on the maintaining by Act of 1964 jurisdiction court lacked over plan on the basis that discriminated brought appellants’ suit had been permitted at retirement sex because portion of Title VII ages length service different prohibiting Act of 1964 discrim- women.5 men and ination account of sex.1 male Under granting The basis for the motion was employees at 65 with could retire First, twofold. the court was mandatory retire- years service, opinion alleged unfair that because age employees could 70. Female employment practice, years’ age service with 20 retire at sex, pension rights on had the basis age mandatory at 65. and retirement was bargaining by a been rectified 1965. with those filed the Commission Appendix 703(a) (1), 2000e- § 42 U.S.C.A. Section (App.) 80a-85a. in a claimed also 5. Discrimination later, charge against appear 2. As will job provision assignment collec- had in fact the revised agreement bargaining between tive EE.OC, but filed had that, provided parties which called the attention years employee who is 60 If a male However, author- decision. its employee over, age or a female or ity to later file suit over, years age or who is 55 officially granted not been prior assigned to a lower classification the date of amendment incapacity, but because the lower deci- court’s job, his exist- of his [sic] elimination sion. note See infra. ing virtue not be lowered rate shall 706(e), 2000e-5(e). Section U.S.C.A. assignment lower-rated precedent the fil- For the conditions job. action, aof civil note see infra. provision This was eliminated May 1, collective bar- revision of the 4. After initial insti- 60a, ap- agreement, gaining employees about other tuted longer pears to be no in issue. charges with the EEOC. ad- ditional were consolidated early provided decision, also retire- the Commission issued a dated age January finding ment for at the reasonable attaining cause to but before believe that the vio- completion years By Male of 30 service. lated Title VII.8 letter dated Feb- taking early ruary 9,1966, Compliance the Director of reduced *3 appellant benefits of the Rosen EEOC informed specified rate.6 such reasonable cause found, at- and that the would According appellants, em- male a by tempt practice to eliminate the taking age ployee early at retirement By letter, ciliation.9 another also dated service, 60, years’ receive after February 1966, Mr. Rosen was advised substantially pension than a fe- lower by Compliance of the Director due age, retiring employee at the same male heavy Commission, workload of length service, of assum- the same possible or it to undertake salary.7 average annual the same efforts, but conclude the conciliation filed with After were be undertaken conciliation would investigation, following EEOC, and and continued.10 pension age sixty-five of the 6. The relevant sections the time of his than at (established according (App. 2a.) retirement.] May up portion and in to the time of effect bracketed of Section 6 was revision), basis which formed the of the initial complaint, provide that, follows: of the initial were as suit may employee male at 3. Each Section employee eligible An who becomes for sixty-five option age or at his retire early early present retirement under the twenty- upon completion thereafter of provisions retirement of the Pension years service, at and must retire five of sixty-two years Plan and is old but may seventy. employee age Each female sixty-five age less than pension will have his age sixty option or there- at her retire at by one-quarter reduced of 1% years completion twenty of of after service, thgn age month that for each he is less age sixty-five. must retire at and sixty-five at of retirement. time employee retires 4. Each Section who present reduction is one-half of provisions Plan this Pension under the of per span years. month for this of 1% age relating retirement for to normal employee early eligible An for retire- monthly paid life, in install- for shall be present provisions ment under who is computed ments, annual at the sixty years sixty- age old but less than wage average annual rate of of by 1% two will have his reduced salary employee five for the of such one-quarter thirty- of for each of the 1% earnings years highest last within sixty-five age six months below and employee’s service, years mul- ten of the one-lialf of for each month that he 1% any years, tiplied and the number sixty-two age is below at the time of employee’s year, serv- of the fraction of a (App. 56a.) retirement. ice. Appellants’ p. brief, 7. 3. may employee at Each 5. male Section age sixty option or there- at retire his App. 8. 13a. While the discrimination sixty- age attainment after but before generally against found was em- thirty years upon completion five ployees, that, the Commission also said service. employees disadvantaged Female employee who Each male Section operation provisions Pen- retires under compulsory in that early relating retirement sion Plan age though retire at 65 even monthly life, paid install- for employees shall be some female be able computed ments, annual at the physically working desirous of five wage average annual years rate of permitted 1% additional would not be employee salary the five of such so, or years to do earnings highest the last within appellant-union It should be noted that service, employee’s years multi- represents ten both male and female em- any years, plied the number ployees. employee’s year, serv- fraction of a ice, App. 11a. reduced one-half [and 1% employee is less that such each month 12a. optional further notified differences Mr. Rosen was man- 706(e) datory ages of Title retirement men wo- Section right men, eliminating apparently had the he thus bring predicate complaint. appellants’ within in the district court initial days receipt thirty of the letter. employees permitted after the All to retire were compulsory on March at was instituted retirement at 70. Suit Sweeney union Rosen, provid- The modified also plaintiffs.11 named as early ed for for all suit, During pendency pension, after reduced nego- years appellee-company Female union and service. agree- bargaining electing early retirement would tiated new which, inter May on ac- suffer in benefits effective reduction *4 erasing plan prior May alia, 1967.12 modified count service conflicting issue, rec in the evidence and the Com- that such notice 11. There promptly conciliation efforts as whether such shall issue no- ord mission parties. the EEOC’s been undertaken to all had tice authorizing and be pursuant sent (c) was suit Issuance of notice letter (App. was filed. after suit not the Com- 1601.25 does terminate § fore 76a-79a.) 69a, 71a, jurisdiction proceeding, 50a, In view 49a, of the mission’s proc- cir a number of recent decisions to be and the case shall continue that, cuits, appears as least it § 1601.25a. essed. C.F.R. initially brought, regulation ac was can be con- this Whether this time at conciliation efforts Title VII to re- tual strued quire the context of filing prerequisite aof to the not a actual efforts as were conciliation long precedent action, so as under VII action Title civil a court we dition Commis been filed need not decide. As was the case with statutory complaint here, Dent, notice had and the the initial sion the EEOC that from Johnson Choate cases all involved received compliance. voluntary brought prior to obtain to November 1966. suits unabl§ Dent Railway Dent, Francisco v. Louis-San St. : the court said (5th 1969) ; Company, F.2d 399 Cir. may [November It be that this Co., Air Line R.R. generally v. Seaboard regulation put Johnson 1966] will 1968), (4th cert. de Cir. posture F.2d 645 end to cases of that Carriers, Freight sub nom. Pilot nied here decided. 406 F.2d at 403. Walker, 918, 89 S.Ct. Inc. v. ; (1969) 1189, 22 Choate L.Ed.2d provision, appel- explanation of this 12. In Caterpillar Co., 402 F.2d 357 Tractor p. 9, brief, in its lee stated 1968), involving * (7th ** a case more than allow a does no hiring account of on employees for credit years sex. prior date of of service November It should be added May revision, 1, 1967, because the following issued the the EEOC age for women minimum retirement regulation: by negotiations from was raised alone Processing cases; May 1, years age. when § 1601.25a As of 60 to 1601.25. notice issues under no credit is allowed to female (a) processing employees all time for cases after for service rendered days except insofar is extended mini- of the revision. Since the date proceedings be earlier terminated for male mum pursuant raised, prior §to 1601.19. service credit was provisions nothing (b) Notwithstanding women was other than paragraph (a) section, recognition Com- the defendant pur- right shall issue a notice an accrued contractual mission Union particularly or, pension purposes, suant 1601.19 where reason- for light §to agree- found, able cause has been of Article XVII of the labor * * * respondent, efforts at conciliation with except party prohibits company charging from or the “di- respondent may upon expiration minish[ing] any provided benefits ” days [pension] plan after the said demand in writ- time thereafter (Main 2; provision brief, p. reply brief, for male was made ence. No similar 2.). early p. electing retirement.13 opinion In the oral rendered Following adoption of col- the new below, judge stated: bargaining agreement, district lective grant- 21,1967, orally court, December jurisdic- I consider that I am without pretrial confer- appellants at ed leave to grant particular tion at this time to complaint to amended” “to file an ence sought by way the relief of the amend- allege pleadings ments to the forth in the set (App. of the Act. also violated [sic], pretrial (Emphasis order add- 64a). ed). (App. 110a). in the record cannot find While disposition Thus in our of this original complaint, amendment if an we will treat actually complaint, was or an amended amendment had been filed. proceeded filed, parties and the court On March the district court if amendment in the action further granted summary appellee’s motion example, in accomplished. For had been judgment.14 opin- The court summary judgment, its motion ion modification grounds: one of its lists as rendered the negotiated Pension revised Summary granted judgment moot. *5 within not discriminate Plan does the as to the amendment to of the Civil purview Title VII charges the that no had been on added). (Emphasis Act of 1964. alleging that the filed the EEOC 68a). (App. pension plan constituted ;15hence, employment practice the court, unfair this Likewise, to its in briefs under the administrative remedies amendment” the “oral appellee refers to not been exhausted.16 had pretrial confer- at they already by appellants filed that had provision According appellants, this 13. challeng- charges with the EEOC following further discriminatory in the was also pension plan, evi- the amended fashion: dently appellee unaware of it years’ was also thirty Thus, female charge salary actu- average at this time. The new ally had service, with an July in or Au- been filed sometime pension per year, $10,000 credits August 22, gust, in ac- May On 1, per year, 1967. $3,000 1967. on request (see appellants’ age EEOC cord May 1, 1968, at on If she retired ap- brief, p. 3), notified the Commission an additional have had would she pellants, pursuant 1601.25 C.F.R. year’s $100 or an additional service one thirty days (b), by in which reduced $100 would be credit. The institute suit. months, or total twelve 1% September 20, 1968, appellants filed On 3%, $3, $97. Her for a net of or separate complaint court, the district per in $3,097 pension therefore be would 1968, alleging at No. Civil Docket May 1,1968. year, 955— as of pension plan violated employee, the modified a male hand the other On by discriminating Title VII of the Act on May 1, 1968, under ex- retired on pend- the basis of sex. That suit is still circumstances, actly re- would same ing. According complaint, a to this new $3,100 pension less annual ceive copy supplied court, of which was to this pension 21%, $651, a net parties the EEOC has informed the 5.) brief, p. $2,449. (Appellants’ investigation its of the new would appellants way, Putting it another “suspended” pending be the decision of that: tended appeal. in the instant may retire In by approxi- pension reduced on 16. brief, p. 11, appellants argue In probably mately be should [this .01% strenuously necessary “it is not by pension ; is reduced a male’s .1%] charges to file [with new 15.) p. (Brief, 21%. subsequent EEOC] because App. 114a, 115a. modifications do not correct the fault original charge.” which is the basis for the entirely which are not 15. For reasons apprised clear, was not the court below part appellants merit the first and the We find On e., curiae, appellants’ argument, possi con EEOC, appearing i. amicus bility original complaint some of tend that having May 1, appellee-company harm by revision suffered mooted possibility May before the because may Jenkins United have suffered modification. See that some change (5th Corp., damages F.2d 28 was Gas money before court had 1968).18 Accordingly, the district made, and because insofar injunctive whether to determine failed concerned, case pub protect necessary relief was will be remanded for a determination continuing alleged against the lic interest any appellants, whether named basis discrimination other members policy argues The EEOC sex. may union,19 between have retired frustrated expressed will be in Title VII date the initial pro parties-defendant a Title if change, May 1, EEOC and the plain place ceeding permitted “to may harmed and thus have been treadmill an administrative tiffs on litigants go compelling back finding, of benefit formula.20 Such a al is an every time there discriminatory practice.”course, require to rule the court leged change in a original pension plan, 17 whether brief, p. 1966), EEOC’s From agreement bargaining possible only evi- harm not consider appellee-company dently appellants allows the named but also to other mem- changes unilateral make bers of the union. its decision Jan- changes long uary 26, do not 13a, as such so said The Com- benefits. the available decrease the union *6 envisage pos- appellants and male mission behalf all as the “on aggrieved step-by- making sibility company parties.” pretrial Also, inequality any alleged step ference, appellants in decreases counsel stated really each between “that this involves a class action brought, following representative is time suit is of a tremendous that charges people the Commission in number of the Public Service inability Company, volun- obtain Commission’s all whom involved in are Appellee-company compliance. tary particular pension plan.” App. re- this one jects analysis bar- 65a. reply agreement. (Appellee’s gaining noted, ap however, It should be that p. 8.) brief, pellee asserted below that the “suit is proper App. 68a, action,” not class only rely support 18. We person aggrieved Jenhins that union not an is damages monetary right VII, claim under Title We do 20a. not prior conclusively to the elimination dis- harm criminatory practice. decide issue at this time the reasons For leave it but for the initial determination subsequently given, we follow do the district court if the matter is injunctive approval Jenhins as its raised. v. Crown Oatis Zellerbach Cf. Corp., (5th 1968). relief. 398 F.2d 496 Cir. previously stated, Because, by appel- a number 20. The filed sufficiently possible contemplates union members of of other lants monetary damages EEOC, charges prayer of discrimination as the in each by agreement which the three causes of action set forth appellee (App. 85a) consolidated with the “for asks may such other and further relief purposes investiga prior just proper be deemed right tion, apparent recognize appellants and because of court.” We did not bring press point this action on behalf union to below denied members, prevent International Chemical of its case was This moot. does not damages Manufactur Union v. Planters Workers consideration of on remand. F.Supp. (N.D.Miss. ing Co., 259 modification, Corp., prior supra, injunctive to its violated this kind of re Rights particularly appropriate of 1964.21 lief is Act Civil in the sen sitive area of racial discrimination where any not find If the does district the Commission and the should courts party of relief to the kind above entitled make sure proceed that once the formal harm described for caused ings ugly have ended the face of bias does 1,May reappear. But this is not such a case. revision, agree then We do not make the distinction on the that the issues raised basis that discrimination on account of original rec- moot. We any sex reprehensible is less less ognize complaint specifically re- protected than discrimination because of injunctive relief, quested and we have race. We make the distinction because carefully position studied here we have a written modification of strong policy behind EEOC that pension plan, embodied in a collective normally Rights Civil Act of 1964 would bargaining agreement, which excised the injunction grant support age differentials in retirement between employer has make certain men original and women to which the prac- voluntarily stopped conclude, was addressed. We proper tices to hew to continues therefore, employee if no male course. pre-May harmed pension plan, dispose out, appellee points should com and as As the plaint injunctive implicit eases relief is unnece relies, g., ssary.22 United Gas e. Jenkins v. Appellee rectly Appellants rely by below Title VII contended on the issue. analogy NLRB, of 1964 does not on Inland Steel Co. v. apply plans. (7th to retirement and F.2d 1948), A.L.R.2d February, 1968, denied, the EEOC issued cert. 336 U.S. 69 S.Ct. (1949), this sub- of Guidelines” on “Statement 93 L.Ed. 1112 which held ject: requirement in the National La employers Pension and Retirement Sec. bor Relations Act bar 1604-31 gain respect pay, wages, Plans “to rates of optional (a) employment A or com- difference hours of or other conditions pulsory ages employment” plans. based on sex covers (See Paper violates Title VII. also Fibreboard Products (b) sex, Corp. NLRB, based Other differences such as differences vivors, benefits for sur- S.Ct. 13 L.Ed.2d 6 A.L.R.3d ; (1964) will be decided the Commis- Retail Clerks Union v. *7 NLRB, U.S.App.D.C. 191, sion the issuance of Commission de- 330 117 F.2d raising 210, 215, denied, cisions in cases such issues. cert. U.S. S. provisions (1964) ; Because the of the Adminis- Ct. 13 L.Ed.2d 31 and Annot. 1003) (5 (1950).) VII, trative Procedure Act requiring U.S.C. 12 A.L.R.2d Title proposed prohibits notice of rule mak- which spect discrimination “with re ing, opportunity public participa- compensation, terms, to tion, delay date, conditions, privileges in employment, and effective * * *” inapplicable interpretative rules 2000e-2(a) to these (1), U.S.C.A. immediately by appellants’ actually shall become effective is asserted counsel applicable respect coverage and shall be with to to be broader in than the Na charges presently language. before or hereafter tional Labor Relations Act Commission, except (App. 96a.) filed with the 1604.31(a) Cf., will Gardner, Section become effective Gruenwald v. 390 F.2d July respect (2d 1968), unsuccessfully to Cir. chal inequalities lenging security hereafter filed with the Commission. in social bene (see weight sex, not, however, While entitled due Amer to fits based on which did Newspaper ican ander, Ass’n Alex Publishers involve the Civil Act of 1964. F.Supp. (D.D.C.1968), Independent a Williams, for “guideline”), discussion of the effect of an EEOC News Co. v. (3d 1968), upheld the Commission’s declaration 404 F.2d 758 we dispositive question, injunction “against is not and we the denial of an a reported ruling practice already stopped” have found no cases di which has been form, Turning to one the amendment other issue now As matter alleged original plaint Appellee com which must be dealt with. moved to the argument appeal, the continuing on the dismiss the and discrimination already plan, at the time of the hear- have motion was heard modified motion to been on the merits. dismiss suit has The noted that a second modified the the is denied. duplicating Because VII. Title violates judgment court of the district of, disposed yet has second suit will be re- be case will vacated and precisely the deals it and because proceedings consist- manded for further as amend issues substantive same opinion.25 ent with this deem complaint, we original ment unnecessary whether determine it Judge (dissenting). SEITZ, Circuit summary judgment grant filed in in complaint was first portion was based on on March action argu suggested at oral It was error.23 Rights Act of 1964. of the Civil ac two consolidation sought declaratory in- explicitly and It complaint as original e., tions, i. respect junctive to the de- relief complaint, would second and amended grava- pension plan. The then fendant’s remand. directed sought if this be men of proper be would that this We it discriminated Act because violated upon such to follow procedure respects em- in favor of in several in involved the issues consolidation others, of male ployees in favor in thereto, amendment complaint, the initial employees. com- After action was sifted complaint, be can company the second menced, revised the defendant them.24 plaintiffs disposition made plan. Thereafter out pursuant appellants’ request inference” there was “reasonable where practice resumed. not be has authorized the institution of a civil disposi- charge, supra We believe similar suit on this F.2d note respect necessary prerequisites here with action tion warranted charged appear according com- in the initial to have been met discrimination 11, supra. plaint now been eliminated. has authorities cited in note unnecessary therefore deem 23. We also “public dispute policy do not We appellants whether, to determine overtones” this case stressed tend, in the the discrimination applicability dissent. The of Title VII par- fact modified particularly plans, related tial continuation against prohibition plan. original pension scheme sex, have account of will no doubt to be pending made in be- 24. In connection determined second suit complaint, parties to the first if the amendment tween the even com- plaint complaint, Furthermore, is found to be moot. the second appellants prevail suit, if Title VII of violates the second question emerge pattern Rights Act there discrimina- conceivably may again proper as to whether tion which could call in- arise junctive procedures fol- have relief. *8 administrative permit today the to decide All is on the the we decide record lowed to powerful remedy the While in junction the merits. the in- raised on issues provide pro- raise has it would not not warranted to stated objections “jurisdictional” practice, to the second tection from the appel- reply brief, p. 3; alleged complaint, original (appellee’s which already dismiss, appeal, been to has spect eliminated. With re- motion brief on lee’s right, p. 3), has the the second suit the amend- the district jurisdic- question complaint, course, the the first to raise should term, trial, tion, sua be no doubt consolidated for in the broad sense of that appel- (without completely sponte. foreclosing the fact In view of matter) ripe the the issues are with the lants have plan, disposal supra. against the the merits. See note the modified challenge eluding complaint1 their the contention amended that Title ofVII plan apply a class Act to assert did not as revised and retire- plans. plaintiffs mo- ment later defendant filed I action. Still think were en- summary judgment on several have a tion titled declaration as to whether amending complaint grounds. applicable plan and, their Title VII was to the they so, plaintiffs plan were if made it clear that whether the violated the Act. withdrawing original complaint, plan The not revision of the not did render though important moot; that the bulk these parties conceded even issues grievances alleged may specific very were still much concerned with their adoption Indeed, of the resolution. ap- have rectified issue plicability plan. of Title revised VII was reasserted plaintiffs defendant after the amend- granted The defendant’s district court complaint. Moreover, ed the it was a summary judgment. Appar- motion particularly appropriate subject for a ently that the the district court believed declaratory judgment pub- in view of the subject matter policy lic overtones involved.2 moot the revision had been rendered only sought injunctive Plaintiffs also relief. complaint it. The amended was before Were the district court to decide that complaint on the amended was dismissed applies pension plans juris- ground not that the court have did revised inwas violation of subject matter, because diction over its obliged Act then the court would be complied pro- plaintiffs had not with the injunction. consider the need for an requirements of the first cedural Contrary majority’s approach, I requesting relief from the EEOC. premature think that it is to consider the propriety injunctive relief in view of opinion, majority As I understand question fact that pre- subject remanding mat- the court is below, sented or decided and because the original complaint to dis- ter of basis for such a determination has not there court to determined if trict have developed. any employees, apparently treated I next consider the dismissal of the class, injured by the were complaint by amendment to the the dis- period prior of the Act in the violation plaintiffs trict court on the plan. If to the modification not, exhausted their remedies presumably then ma- the Commission as was re- said to be decision, jority prop- the district court quired by the Act. U.S.C.A. 2000e- original erly complaint as viewed 5(e). majority decided that so, majority then If moot. issue need not be resolved. I am forced district court to decide wheth- direct the disagree. plaintiffs stated a er have otherwise Although legally cognizable Preliminarily, although I claim. the district agree majority posed there ju- should court issue terms of its remand, risdiction, jurisdiction be a I think their remand is too it had statutory issue prerequi- restrictive. is whether the site had been satisfied. original By plain- sought, alia, declaratory Considering tiffs judgment inter charged that the the Act. violated in the amendement with that defenses, many original in- complaint,3 defendant raised I conclude that majority’s agree 1. I decision to In substance both the and the complaints charge if an amendment treat amended unlawful dis- *9 employees, had been filed. crimination because women electing early retirement, when are treated Compare favorably Wirtz v. Local Glass Bot more than their male counter- Blowers, parts. tle 88 S.Ct. (1968). 19 L.Ed.2d 705 so interrelated subject matter require plaintiffs Act does that the again in or- petition the Commission might prop- the district der that purpose A erly amendment. consider the the Commis- proceeding before first permit an type case is in this sion litigation. without settlement

amicable obviously independ- grievances are When statutory purpose is best served ent, that resorting -before to conciliation first However, the EEOC and as the EEOC. grievance where, here, urges, the basic by the “processed” had been recommended, statutory litigation no forcing further purpose is served therefore efforts. I

ciliation summary judgment grant error to it was the district relied

court. MARDEN, Appellant,

Jay William

v. PURDY, of Dade as Sheriff

E. Wilson Florida, Appellee. County, PURDY, of Dade as Sheriff

E. Wilson Florida, Appellant, County, MARDEN, Appellee.

Jay William

No. 26152. Appeals States Court

United Fifth Circuit.

April Unger, Ray Pearson, Frates,

Joe N. H. Fay, Floyd Pearson, Miami, Fla., & appellant. Gerstein, Atty., Richard E. State’s Mendelow, Atty. Asst. Gen.
Harold Fla.; Florida, Miami, Faircloth, Earl Tallahassee, Atty. Gen., Fla., appellee.