EDWARD WEINFELD, District Judge.
Plaintiff, a male flight purser employed by the defendant, Trans World Airlines, Inc. (TWA), commenced this suit as a class action on behalf of himself and other male pursers similarly situated, alleging that the defendant is discriminating against them and in favor of female flight cabin attendants, solely on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964
TWA moves to dismiss on various grounds, the first and principal of which is for plaintiff's failure to exhaust the complaint and conciliation procedure specified in Title VII of the Civil Rights Act of 1964, which it is urged is a prerequisite to jurisdiction in this court.
It is technically correct that plaintiff in this action did not file his charges with the Equal Employment Opportunity
The operative facts relating to plaintiff's claim of alleged discrimination in this action and those presented in the Maguire action are so interlaced and so inseparable that they present a single ultimate issue of whether the defendant's practices and procedures with respect to pursers and hostesses unlawfully discriminate against the pursers or the hostesses, or neither class.
In March 1970, the EEOC made a determination that reasonable cause existed to believe that TWA (and the union) had engaged in and was engaging in unlawful employment practices in violation of Title VII by segregating female flight cabin attendants and females as a class, and by discriminating against them with respect to hiring policy, promotion policy, compensation and seniority because of their sex. The conciliation process specified under the Act failed to secure voluntary compliance by TWA, following which the Commission, on August 20, 1970, notified the complainant, Margaret M. Maguire, that she was entitled to institute a civil action, whereupon she filed the suit, already referred to above as the "obverse" of this action. Thus, it appears that the complaint procedure and the conciliation process with respect to this plaintiff's very claims have been processed by the Commission but decided adversely to his position. The Commission's determination necessarily centered about the conflicting positions of the pursers and the hostesses. They were at counterpoint. In the circumstance, to require the pursers, before commencing this action, to file a complaint with the Commission and to await a sixty-day period, requires them to go through a futile ceremony. The law imposes no such requirement.
Second, the defendant seeks dismissal of the complaint for lack of jurisdiction and for failure to state a claim under the Equal Pay Act of 1963.
Moreover, the discrimination attributed to the alleged disruption by the defendant of the plaintiff's seniority rights and of the merit system based on factors other than sex is a kind of discrimination prohibited by the Equal Pay Act.
The remaining grounds advanced for dismissal for lack of jurisdiction are also without substance. Since jurisdiction of the district court is vested under 42 U.S.C., section 2000e-5(f) upon which, among others, plaintiff grounds jurisdiction, it is unnecessary to pass upon defendant's contention that, because plaintiff's claim relates to private conduct rather than to a charge of deprivation of rights under color of state law, jurisdiction is lacking under 28 U. S.C., section 1343(4). So, too, it is unnecessary to consider the defendant's further claim that because plaintiff does not allege racial discrimination, jurisdiction fails under 42 U.S.C., section 1981.
And Senator Humphrey, sharing the same view, added: "The individual may proceed in his own right at any time. He may take his complaint to the Commission, or he may go directly to court." 110 Cong.Rec. 14188 (1964). Senator Humphrey's statement is particularly significant in view of the fact that the Supreme Court has relied on his interpretation, as the bill's floor manager in the Senate, in construing other provisions of the Act. See Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 13 L.Ed. 2d 300 (1964). For a thorough analysis of the statute's legislative history, see Vaas, Title VII: Legislative History, 7 B.C.Ind. & Comm.L.Rev. 431 (1966).