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January 28, 1976

UNITED STATES of America, Plaintiff,

The opinion of the court was delivered by: ELFVIN


 ELFVIN, District Judge.

 The United States Attorney General brought this suit against the above-named defendants pursuant to Title VII of the 1964 Civil Rights Act as amended in 1972 (42 U.S.C. § 2000e et seq.) to secure relief against allegedly discriminatory employment practices based on sex occurring in the hiring of principals for Sweet Home Central School District. This case was referred to the Attorney General by the Equal Employment Opportunity Commission ("EEOC") after EEOC was unable to secure a conciliation agreement (42 U.S.C. § 2000e-5(f)).

 As a "Fourth, Separate and Distinct Defense" defendants have set up in their answer the invalidity of EEOC's finding of reasonable cause as not having been preceded by EEOC's giving substantial weight to the final findings made by New York State's Division of Human Rights following its processing of a complaint filed with it by the same individual who lodged charges with EEOC, the same factual matters being at issue before each agency. Defendants have applied pursuant to Rule 12(d) of the Federal Rules of Civil Procedure for a determination before trial of the legal sufficiency of such defense. Defendants' moving papers choose to classify such defense as equivalent to defense (1) as set forth in Rule 12(b) -- that the Court lacks jurisdiction over the subject matter of the complaint.

 More specifically, defendants argue that 42 U.S.C. § 2000e-5(b) requires certain procedural steps before suit may be brought. One of these procedural steps is a determination that there is reasonable cause to believe that the charge against the employer is true. In making such a determination EEOC is required to "* * * accord substantial weight to final findings and orders made by State or local authorities * * *". 42 U.S.C. § 2000e-5(b).

 The defendants contend that EEOC did not fulfill the statutory mandate to accord substantial weight to the findings of the New York State Division of Human Rights or that it did not at least reconcile in writing its contrary conclusions with those of the State agency, stating the reasons for such conclusions either on the basis of contrary fact findings or contrary conclusions of law. Therefore, defendants argue that this Court is without subject matter jurisdiction, (even though the affidavit of EEOC's District Director Lloyd Bell states that such substantial weight was given and that a statement to that effect was inadvertently omitted from EEOC's Letter of Determination).

 The requirements of 42 U.S.C. § 2000e-5(b) are conditions precedent to suit by EEOC. See, e.g., Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 507 F.2d 944 (8th Cir., 1974); Equal Employment Opportunity Commission v. duPont Co., 373 F. Supp. 1321 (D.Del., 1974), aff'd 516 F.2d 1297 (3rd Cir., 1975). Whether they are jurisdictional requiring an allegation of satisfaction with particularity in the complaint under Fed.R.Civ.P. 8(a), see e.g., Equal Employment Op. Com'n v. Container Corp. of Amer., 352 F. Supp. 262 (M.D.Fla., 1972), or whether they are part of the cause of action requiring only a general allegation of satisfaction in the complaint under Fed.R.Civ.P. 9(c), see, e.g., EEOC v. Mobil Oil Corp., 362 F. Supp. 786 (W.D.Mo., 1973), is not a question presented to this Court. Defendants make no attack on the complaint under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. However, under Rule 12(h)(2) defendants still can make such an attack. Therefore, to prevent delay, the Court will comment upon this related question.

 The complaint doesn't allege that all these conditions have been satisfied as required by Container Corp. In lieu thereof it says (a) Alice Wilber filed a timely charge with EEOC, (b) EEOC conducted an investigation, (c) EEOC found reasonable cause, (d) EEOC tried to eliminate such practices through conference, conciliation and persuasion, (e) such efforts were unsuccessful and (f) EEOC referred the case to the Attorney General.

 Omitted from the allegation are (1) serving notice of Wilber's charges on respondent within 10 days of filing of charges with EEOC and (2) according substantial weight to State agency's final findings and orders in EEOC's process of determining whether reasonable cause exists.

 The Container Corp. case dealt with defendants' motion to dismiss the complaint, to strike portions thereof and for a more definite statement. The Court reviewed the statutory scheme and found certain deliberate steps -- i.e., charge, notice, investigation, reasonable cause and conciliation -- to be successive conditions precedent to each subsequent step and ultimately to legal action.

"Certainly, the EEOC does not contend that it could skip one or more of these steps at will. The language of the Act is mandatory as to each step and the Commission must complete each step before moving to the next.
"The allegation of the complaint is that all these conditions have been satisfied. The defendants move to dismiss because, they contend, one or more were omitted. * * *
* * *
"The EEOC argues strenuously that the administrative decision to sue is not reviewable * * *. If, as the defendants contend, there are statutory preconditions to bringing suit, to foreclose judicial inquiry into the ...

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