The opinion of the court was delivered by: PLATT
Plaintiff brings this suit pursuant to Title VII of the Civil Rights Act of 1964
("Title VII") charging discrimination by defendants on the basis of sex in the change of various seniority practices affecting the plaintiff.
Plaintiff, who is male, was hired by defendant Trans World Airlines, Inc. ("TWA") as a Flight Purser for its International Operations on March 16, 1970. On April 17, 1970, plaintiff commenced work as a Flight Purser and began to accrue seniority in accordance with the then existing collective bargaining agreement, signed August 8, 1967, between defendants TWA and Air Lines Stewards and Stewardesses Association ("ALSSA").
The 1967 contract provided, in relevant part, that TWA Cabin Attendants (then called Hostesses and then all females), who could meet the qualifications for Purser would be given an opportunity to fill Flight Purser vacancies, as they occurred, before TWA resorted to hiring new employees to fill those vacancies. Female Cabin Attendants filled the first Purser vacancies pursuant to the above contract in or about May of 1968. These Cabin Attendants were credited, as Flight Pursers, with the seniority they had accrued while serving as Cabin Attendants, for purposes of rates of pay, vacation and sick leave but not for purposes of bidding on flights. For this latter purpose, the 1967 contract provided that an upgraded Cabin Attendant went to the "bottom" of the Flight Purser Seniority List and then began to accrue seniority, just as plaintiff did at the time of his hire.
When plaintiff was hired in 1970, there were already 34 female Pursers ahead of him in seniority because they had become Pursers before he had under the terms of the 1967 contract.
On October 22, 1970, defendants TWA and ALSSA entered into a new collective bargaining agreement which changed the seniority system described above.
Specifically, this change provided, in essence, that Cabin Attendants (who, on October 22, 1970, were still all females) would, when promoted to Purser vacancies, be credited, as Pursers, with their time of service as Cabin Attendants, for all purposes, including for purposes of bidding on flights. Thus, for example, when a female Cabin Attendant who had been hired by defendant TWA prior to March 16, 1970, plaintiff's day of hiring, was promoted to the position of Purser after October 22, 1970, she would occupy a higher seniority than plaintiff for all purposes, thereby diminishing his relative seniority. Prior to October 22, 1970, such a female would have assumed the Purser's position without any accrued seniority for the purpose of bidding on flights (such seniority would begin to accrue only at that point), and would thus not have disturbed plaintiff's relative seniority for bidding purposes.
Plaintiff was clearly disadvantaged in his relative seniority by the change in the seniority system, and the female Cabin Attendants subject to promotion were just as clearly benefitted. It should be noted, however, that there may also be female Pursers who, pursuant to the 1967 contract, had higher seniority than plaintiff and who were also potentially disadvantaged by the change in systems.
More than a year after this change in seniority systems, plaintiff filed a complaint with the New York State Division of Human Rights ("the State Division") on November 19, 1971, challenging the new seniority system. This complaint was dismissed on December 17, 1971, and this dismissal was affirmed by the State Human Rights Appeal Board ("SARAB") on October 17, 1972. Plaintiff then did nothing further until January 26, 1973, when he filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission ("EEOC") against TWA and ALSSA. This complaint alleged that the most recent act of discrimination had taken place on January 1, 1973. Plaintiff then, on September 21, 1973, filed another charge with the EEOC identical to the earlier charge except that a charge of continuing discrimination was added pursuant to the EEOC's request. On September 4, 1975, the EEOC issued a determination on plaintiff's charge finding "no reasonable cause to believe that the respondents (defendants TWA and ALSSA) have violated Title VII of the Civil Rights Act of 1964, as alleged," and attaching a "Notice of Right to Sue."
On December 2, 1975, plaintiff commenced this suit seeking a Court order instructing defendants to revert to the seniority system in effect when he was first hired prior to the change effected on October 22, 1970. Defendant has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP") on the ground that this Court lacks jurisdiction over plaintiff's Title VII claims because of plaintiff's failure to comply with the statutory prerequisites of a Title VII suit.
Plaintiff has also moved this Court (i) pursuant to FRCP 42(a) to consolidate with this action a related proceeding in the United States District Court for the Southern District of New York ("SDNY"), (ii) pursuant to FRCP 23(c)(4)(B) for a sub-class determination so that this action might proceed as a sub-class action, and (iii) pursuant to FRCP 20(a) to join the Independent Federation of Flight Attendants ("IFFA"), the successor as union bargaining agent to ALSSA, Local 551, and Transport Workers Union of America ("TWU"), as a party defendant to the related SDNY proceeding when that proceeding is consolidated here. Inasmuch as this Court dismisses the instant proceedings for lack of jurisdiction, further consideration of plaintiff's motion is unnecessary.
On October 22, 1970, when the alleged act of discrimination occurred, Section 706(d) of Title VII
provided as follows with respect to the time for filing a charge with the EEOC:
"(d) A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred, except that in the case of an unlawful employment practice with respect to which the person aggrieved has followed the procedure set out in subsection (b) of this section, such charge shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency."
On March 24, 1972, this section was redesignated Section 706(e)
and was amended to read as follows:
"(e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving ...