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Rosen v. Public Service Electric and Gas Co.

decided: March 8, 1973.

LEO ROSEN, UTILITY CO-WORKERS ASSOCIATION AND MORGAN SWEENEY, APPELLANTS,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY; LEO ROSEN, UTILITY CO-WORKERS ASSOCIATION AND MORGAN SWEENEY V. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLANT; MORGAN SWEENEY AND UTILITY CO-WORKERS ASSOCIATION, APPELLANTS, V. PUBLIC SERVICE ELECTRIC AND GAS COMPANY; MORGAN SWEENEY AND UTILITY CO-WORKERS ASSOCIATION V. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLANT



(D.C. Civil Action No. 245-66). (D.C. Civil Action No. 955-68). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.

Staley, Van Dusen and Rosenn, Circuit Judges.

Author: Staley

Opinion OF THE COURT

STALEY, Circuit Judge.

These are cross appeals from the judgment of the United States District Court for the District of New Jersey.*fn1 That court found two versions of the Public Service Electric and Gas Company ("company") pension plans, which discriminated between employees on the basis of sex, violative of Title VII, § 703(a)(1) of the Civil Rights Act of 1964 ("Act"), 42 U.S.C. § 2000e-2(a)(1).*fn2

Charges in the captioned cases were originally filed separately with the Equal Employment Opportunity Commission ("EEOC").*fn3 After the administrative remedies provided under the 1964 Act were exhausted, suits were brought in the district court. The cases were consolidated there after this court vacated a summary judgment in favor of the defendant and remanded the first of these actions.*fn4

The district court held both plans to be violative of the Act and ordered the company to cease and desist from discriminating between men and women as to retirement benefits.*fn5 However, no award of compensatory damages was made. The plaintiffs have appealed from the denial of monetary relief; the company has cross appealed from the remainder of the judgment.

A pension plan was first instituted by the company in 1911.*fn6 According to its terms a female was permitted to retire on full pension at age sixty if she had completed twenty years of service. A male, in order to receive full benefits, was required to have attained the age of sixty-five and to have served at least twenty-five years. Early retirement was available to a man at sixty only if he had served thirty years and then only at a reduced pension. Women were discriminated against in that their mandatory retirement age was sixty-five whereas their male counterparts could continue working until age seventy. The first plan was revised as the result of collective bargaining between the defendant and representatives of its employees.*fn7

The revised version which took effect on May 1, 1967, perpetuated the discriminatory features of the 1911 plan only to the extent that it favored women hired prior to its effective date. The controversial section provides:

"* * * in the case of a female employee who retires under the provisions of this Section 4, no reduction in the amount of the pension shall be made on account of service prior to May 1, 1967."

Under this plan the mandatory retirement age for all is seventy.

STANDING

On appeal the standing of the plaintiffs to maintain this suit is questioned. Standing "concerns * * * the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The substantive issues must be considered to ascertain whether "there is a logical nexus between the status asserted and the claim sought to be adjudicated." Flast v. Cohen, 392 U.S. 83, 102, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). Standing for purposes of the Civil Rights Act of 1964 was intended by Congress to be defined as broadly as is permitted by Article III of the Constitution. Hackett v. McGuire Brothers Inc., 445 F.2d 442 (C.A.3 1971).

Rosen, the company contends, lost standing to contest the alleged discriminatory practices when he retired. We do not agree. He was an active employee when this action was commenced and does not lose standing merely by accepting his pension. Hackett, supra; see Jenkins v. United Gas Corp., 400 F.2d 28 (C.A.5, 1968). As one who was subject to the discriminatory provisions of the pension plans under consideration he has standing. Sweeney, an active male employee, also has a sufficient personal ...


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