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November 5, 1975

Margaret M. Maguire et al., Plaintiffs
Trans World Airlines, Inc., et al., Defendants

Wyatt D.J.

The opinion of the court was delivered by: WYATT


This is a motion by defendant Trans World Airlines, Inc. (TWA) for partial summary judgment dismissing all claims in the second amended complaint which are asserted under Title VII of the Civil Rights Act of 1964 (78 Stat. 253 and following; "the 1964 Act"). The ground for the motion is lack of jurisdiction over the subject matter because the action was not commenced within the 30 day period specified in the statute as enacted and as in effect at the relevant time (78 Stat. 260).

 The action was commenced on September 10, 1970, by plaintiff Maguire and eleven other female employees of TWA.

 The trial of the action commenced to the Court without a jury on September 16, 1975; the trial is presently in recess until February 16, 1976 because of the necessity for the Court to deal with other matters. The present motion was made returnable at the opening of trial. It was of some interest that the motion had not been made earlier by TWA; the explanations for movant are not entirely satisfying but in any event the issue is one of jurisdiction which, of course, can be raised at any time and should be raised by the Court if the parties do not do so.

 The motion raises a serious issue of jurisdiction which must be set in the factual background of the litigation.


 TWA is an airline with domestic operations and international operations. On international operations there is a purser and there are also other cabin employees. Before August 8, 1967, all pursers had been male and all other cabin employees had been female, then called "hostesses". Pursers and hostesses were sometimes together called "cabin attendants". Pursers are paid more than other cabin attendants.

 On domestic operations there were only hostesses; there were no pursers.

 Hostesses on international flights were paid more than hostesses on domestic flights.

 Alssa was the Air Line Stewards and Stewardesses Association, Local 550 and was part of Transport Workers Union of America (TWU). Alssa was the representative for both hostesses and pursers for collective bargaining under the Railway Labor Act. Alssa, Local 550 (Alssa, for short), represented cabin personnel (flight attendants), male and female, on several airlines, including TWA; its headquarters offices were in Chicago. There were local executive councils of Alssa at each TWA base, sometimes called the "domicile" of the flight attendants working from that base.

 On August 8, 1967, Alssa and TWA made an agreement.

 By the agreement (Article 13(G)), hostesses (females) were made eligible to be pursers and were given preference for vacancies in the purser position. There were separate seniority lists, one for hostesses and one for pursers.

 The August 8, 1967, agreement was to be in effect until July 31, 1969.

 This action grew out of claims by Maguire and other hostesses on international flights that TWA discriminated against females, principally in that hostesses (females) were paid less than pursers (mostly male) for substantially the same work; in that hostesses (female) were denied promotion to purser because of language requirements not applicable to male pursers; and in that there were separate seniority lists, one for hostesses (female) and another for pursers (mostly male).

 The union (Alssa) represented both hostesses (female) and pursers (mostly male) and there was some tension between the interests of the two sexes.

 Maguire has been active for a long time in union affairs. She was a local executive chairman in Boston in 1958 (SM 768-70) and 1959. She then transferred to international flights as a hostess and was based in New York.

 In early 1968, Maguire tried to become a purser but failed the language test.

 On April 26, 1968, Maguire filed a charge with the Equal Employment Opportunity Commission (EEOC) against both TWA and the union Alssa. This is the charge on which the 1964 Act claims in this action are based.

 In 1968, Maguire, Pearl Nelson and others began circulating a petition, composed by Maguire and Nelson, for signature by union members. This petition -- usually called the "equal pay for equal work" petition -- was designed for presentation to the union for use as union proposals in the negotiations with TWA for a contract to replace that expiring July 31, 1969.

 In 1968, Maguire ran for a position in the union at the New York base -- using the petition as campaign material -- but was defeated by a male purser.

 The union contract negotiations with TWA began in June 1969. Apparently the old August 8, 1967, agreement continued in effect during the negotiations (which lasted, as will be seen, until October 22, 1970).

 In June 1969, Nelson was elected chairman of the union council at New York and shortly afterwards she became one of the union negotiators in the contract discussions with TWA.


 EEOC on March 17, 1970, filed its decision on the Maguire charge. The decision was that reasonable cause existed to believe that the union and TWA were "jointly and severally" engaged in violations of the 1964 Act. See Section 706(a) of that Act (78 Stat. 259). After such a determination, the 1964 Act specifies what should be done: "the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" (78 Stat. 259). This was the only power of EEOC under the 1964 Act as enacted.


 The chronological narration must be interrupted to examine the 1964 Act as to civil actions and EEOC practices in respect of the statutory notice after which, during a 30 day period, a civil action may be brought by the person aggrieved against the respondents named in the charge.

 Section 706(e) of the 1964 Act as enacted and in effect in 1970 read, in pertinent part, as follows:

"(e) If within thirty days after a charge is filed with the Commission . . . (except that . . . such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted) the Commission has been unable to obtain voluntary compliance with this title, 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 person claiming to be aggrieved, . . . "

 It should be emphasized that the notice which starts the 30 day period running is, according to the statute, notice that "the Commission has been unable to obtain voluntary compliance". There is nothing in the statute about any notice to the person aggrieved of his or her right to sue.

 According to the statute as passed, if EEOC is unable to obtain voluntary compliance by respondents within a maximum of 60 days after the charge is filed, it "shall so notify the person aggrieved" and a civil action may be commenced within 30 days.

 This gave EEOC only 60 days at best to investigate, determine reasonable cause, and attempt conciliation. The large number of charges filed apparently made it impossible for EEOC to complete its duties in that period. Its regulations had early extended to 60 days the "time for processing all cases" (C.F.R. § 1601.25a(a) in effect when the Maguire charge was filed). The statute had put the period at 30 days, after which the statutory notice was required to be given; the EEOC could extend this period to as long as 60 days in any given case "upon a determination by the Commission that further efforts to secure voluntary compliance are warranted" (78 Stat. 260). Without any such determination, the EEOC regulations (of questionable validity) made a blanket extension to 60 days in all cases.

 The EEOC must have realized that even within the 60 day period after which the statutory notice was required, it could not attempt conciliation in the many cases before it. A procedure (of questionable validity), expressed in regulations, was therefore devised which on its face enabled EEOC to delay giving the statutory notice ("unable to obtain voluntary compliance") unless such a notice was demanded. The regulations (from 29 C.F.R.) read in pertinent part as follows:


§ 1601.25 Notice to respondent and aggrieved person.
In any instance in which the Commission is unable to obtain voluntary compliance as provided by Title VII it shall so notify the respondent and the aggrieved person or persons. Notification to an aggrieved person shall include:
(a) A copy of the charge.
(b) A copy of the Commission's determination of reasonable cause.
(c) Advice concerning his right to proceed in court under section 706(e) of Title VII.
§ 1601.25a Processing of cases; when notice issues under § 1601.25.
(a) The time for processing all cases is extended to sixty (60) days . . .
(b) Notwithstanding the provisions of paragraph (a) of this section the Commission shall not issue a notice pursuant to § 1601.25 . . . where reasonable cause has been found, prior to efforts at conciliation with respondent, except as provided in paragraph (c) of this section.
(c) At any time after the expiration of sixty (60) days from the date of the filing of a charge, or upon dismissal of the charge at any stage of the proceedings, . . . the charging party or the respondent may demand in writing that a notice issue pursuant to § 1601.25, and the Commission shall promptly issue such notice, with copies to all parties."

 It must be noted that by these regulations notice to the aggrieved person includes "advice concerning his right to proceed in court" but this was invented and added by EEOC and is not found in the statute. While the addition may be an appropriate act, it has no legal effect on the rights of the person aggrieved, either as to the period for commencement of a civil action or otherwise.

 Thus, looking backward, it may be seen what the situation was after Maguire filed her charges with EEOC on April 26, 1968.

 Under Section 706(b) of the 1964 Act (78 Stat. 259-60) an aggrieved person is required to go first to a state agency where one is available. If, however, a charge is filed with EEOC without having been submitted to an available state agency, EEOC does not dismiss the charge but refers it to the state agency and, after termination of the state proceedings, considers the charge as then filed with EEOC (29 C.F.R. § 1601.12). This procedure seems valid and reasonable.

 Maguire had not started any proceeding before any New York agency. When her charge was filed with EEOC on April 26, 1968, it was referred to the New York State Commission for Human Rights which dismissed the charge on jurisdictional grounds on May 15, 1968. EEOC assumed jurisdiction on May 16, 1968. Thus, May 16, 1968 is the date when Maguire's charge ...

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