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July 1, 1976

Diana L. SPIRT, etc., Plaintiff,

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

 Plaintiff Diana L. Spirt ("Spirt") moves for class action certification pursuant to Rule 23, Fed.R.Civ.P. Defendants Teachers Insurance and Annuity Association of America ("TIAA") and College Retirement Equities Fund ("CREF") cross-move for an order pursuant to Rule 56, Fed.R.Civ.P., granting partial summary judgment in their favor and for an order pursuant to Rules 12(c) and 19(a), Fed.R.Civ.P., dismissing this action for failure to join indispensable parties. For the reasons hereinafter stated, the motions are denied with the exception of the motion to dismiss for failure to join indispensable parties which is conditionally granted in part.

 Plaintiff, a female professor at Long Island University ("LIU"), charges sex discrimination in the operation of a pension plan administered by defendants. This pension plan utilizes actuarial tables which indicate that women at retirement age have a longer life expectancy than do men at that same age. Consequently, the amount of each periodic payment made to a female annuitant selecting a single-life option is smaller than that paid her male counterpart. Use of sex-based tables and the disparity in treatment which results, Spirt claims, constitute violations of the Fourteenth Amendment to the Constitution, 42 U.S.C.§ 2000(e)(1) et seq. ("Title VII"), 42 U.S.C. § 1981 et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). TIAA and CREF deny that their pension plan unlawfully discriminates asserting instead that the plan has a demonstrably rational and equitable basis.

 I. Defendants' Motion for Partial Summary Judgment.

 Defendants move for partial summary judgment claiming that plaintiff has failed to comply with the jurisdictional prerequisites to a suit under Title VII. Two lapses in this regard are cited. First, the complaint in this action was filed on April 15, 1974 while no charge was filed with the Equal Employment Opportunities Commission ("EEOC") until on or about October 19, 1974. The EEOC issued a Notice of Right to Sue on August 4, 1975.

 A Right to Sue letter has been held to have the effect of ratifying a prior filed suit. The Court in Black Musicians of Pittsburgh v. Local 60-471, American Federation of Musicians, 375 F. Supp. 902, 906-07 (W.D.Pa.1974) stated:

Here, . . . the suit was brought before the issuance of the right to sue letter, even before the filing of the charge with the EEOC. Asserting one's rights too late is quite a different matter from asserting them too soon. Henderson v. Eastern Freight Ways. [460 F.2d 258 (4th Cir. 1972)] . . . . The issuance of the right to sue letter, in effect, validated the pending suit making it unnecessary to file another suit. Under the circumstances, we do not think a dismissal of the complaint at this stage would fulfill the purposes of the [Civil Rights] Act.

 Defendants renew their argument that plaintiff has not pursued her remedies at the state level, as mandated by the statute. In dealing with this matter, the Court is mindful of the recent decision by the Court of Appeals in Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. June 7, 1976). The Court of Appeals noted that summary judgment must be used sparingly and observed:

There is an additional factor equally vital to the resolution of this case. Title VII is rife with procedural requirements which are sufficiently labyrinthine to baffle the most experienced lawyer, yet its enforcement mechanisms are usually triggered by laymen. Were we to interpret the statute's procedural prerequisites stringently, the ultimate result would be to shield illegal discrimination from the reach of the Act. Prior decisions, both of the Supreme Court and of this Circuit have, for this reason, taken a flexible stance in interpreting Title VII's procedural provisions. We follow this realistic approach today.

 Finally, the Court expressed a preference that such issues be left to trial.

 Defendants' initial motion for summary judgment based upon plaintiff's alleged failure to pursue her state remedies was denied because factual questions remained. They now seem to have multiplied. A determination of the extent and nature of communications between Spirt and her attorney and the state authorities is best left to trial, where, for example, testimony could be adduced as to "the standard practice of the New York State agency." At that time also perhaps the meaning of the EEOC phrase "Failure to Proceed," can be clarified. At this point, these factual questions are open. This coupled with the Court of Appeals' implied directive that issues of compliance with Title VII's procedural demands be resolved at trial compels the Court to deny defendants' motion for partial summary judgment.

 II. Defendants' Motion to Dismiss for Failure to Join Indispensable Parties

 TIAA-CREF move to dismiss for failure to join indispensable parties. They claim that joinder of both the employer educational institution, LIU, and of all the male participants in the challenged pension system is mandated.

 Rule 19(a), Fed.R.Civ.P., states in pertinent part:

(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

 Briefly outlined, the operation of defendants' pension program, as described in their papers, is as follows. The plan is commonly established by resolution of the board of trustees of the educational institution. Provision is made for a particular percentage of salary to be contributed both by the institution and by the employee. There is no contract between TIAA and CREF and the institution; instead, an individual contract is sent by defendants to the employee.

 TIAA-CREF claim that, should plaintiff succeed in this action, costs of the pension program will rise and these increased costs will likely be borne by the participating institutions. Therefore, LIU, as such an institution, has an interest in this litigation which requires its joinder. Additionally, defendants argue complete relief is impossible in the absence of the employer.

 These contentions would appear to have merit. In Barninger v. National Maritime Union, 349 F. Supp. 803, 805 (S.D.N.Y.1972), it was determined that trustees of a pension plan would remain as party defendants where their involvement concerned more than "a mere administrative detail of pension trust administration." Here, LIU has chosen to adopt ...

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