The opinion of the court was delivered by: MCCUNE
The Equal Employment Opportunity Commission brought this suit against Allegheny Airlines, Inc., pursuant to Title VII of the Civil Rights Act of 1964, alleging that Allegheny has intentionally engaged in discriminatory employment practices based on race and sex. Allegheny has filed a motion to dismiss the Complaint or, in the alternative, for partial summary judgment. This motion presents questions concerning the permissible scope of a judicial complaint filed by the EEOC in a Title VII action.
On January 5, 1972, Roy K. Herman lodged a charge with the EEOC, complaining as follows:
"I applied for employment as a Steward with the Allegheny Airlines on January 4, 1972. I was told by Mr. Rouson that they only hired females for the job and men were not being considered. I feel I have been discriminated against because of my sex (male)."
The record indicates the extent of the EEOC investigation of the Herman charge. On November 16, 1972, the EEOC sent interrogatories regarding the Herman charge to Allegheny. These consisted of four questions which dealt exclusively with Allegheny's hiring procedures for flight attendants and the circumstances surrounding Herman's application for employment as a flight attendant. The position of the flight attendant was also the subject of two file memoranda by EEOC case analyst, David Worstell.
In July, 1973, Mr. Worstell made note of an interview he conducted with David Rathke, Allegheny's employment director, during which the two men discussed the new class of flight attendant trainees at Allegheny, and the fact that, since the time of the charging party's application, men and married females had applied for the flight attendant job, but none had been hired. On September 6, 1973, Mr. Worstell attested to a meeting at an Allegheny hanger building with Mr. Rathke, Harry Risetto, outside counsel to Allegheny, and Wayne Chapman, Allegheny personnel co-ordinator. The purpose of the meeting "was to discuss Respondent's policy concerning the granting of maternity benefits which is a like and related charge on all the cases against Allegheny involving the flight attendant issue." It is clear from the memorandum that the focus of this meeting was the maternity leave policy expressed in the flight attendant's collective bargaining agreement.
In addition to the foregoing, the Commission requested, and Allegheny furnished, the following documents: copies of the flight attendant's collective bargaining agreement; Allegheny's employment application form; a statement of flight attendant qualifications; and EEO-1 forms which specify the race and sex representation in the various job-classifications at Allegheny's Pittsburgh, Pennsylvania facility.
On October 24, 1973, Eugene V. Nelson, District Director of the EEOC in Pittsburgh, issued a Letter of Determination on the Herman charge. The determination incorporated the charges of two other men besides Herman who had either filed applications for employment or inquired about employment in the flight attendant position. There is no evidence that the scope of the investigation of these charges exceeded that of the Herman charge. The four page Letter of Determination dealt entirely with the flight attendant's position, except for two paragraphs. Those paragraphs extended the determination to include "Respondents' failure to hire and promote women and Negroes into the job categories of officials and managers, professionals and technicians," and "Respondents inquiries on its employment application concerning prospective employees' arrest records."
Following the issuance of the determination, the Commission and Allegheny attempted conciliation. The EEOC representative in this process, Victoria A. Ross, submitted an affidavit which stated, in part, that
"4. When the Commission and Allegheny Airlines could not arrive at a satisfactory resolution of the issues with respect to Mr. Herman, the Commission concluded that conciliation had failed.
"5. Had the Commission and Allegheny been able to conciliate the issues with respect to Mr. Herman, the Commission would have attempted conciliation of all other issues.
"7. My instructions, at that time, were to conclude conciliation efforts if there was no agreement as to charging party, since that aspect of conciliation was deemed to be essential and that to go on to other issues . . . would be an inefficient use of Commission resources and personnel." (Emphasis supplied).
The Complaint, instituted pursuant to § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), was filed on March 23, 1976. In the Complaint, paragraph 10, the Commission alleges that Allegheny engaged in the following unlawful employment practices: (A) excluding blacks from certain jobs because of their race, (B) using pre-employment criteria (arrest record inquiries) which caused a disproportionate rejection of blacks, (C) excluding males as flight attendants, (D) excluding married females as flight attendants, (E) maintaining discriminatory maternity leave policies, and (F) excluding females from certain job ...