ON MOTION FOR REHEARING AND RECONSIDERATION
OPINION and ORDER
Defendant, Public Service Electric and Gas Company moved, on October 13, 1970, for an Order granting a rehearing and reconsideration respecting this Court’s Opinion in favor of plaintiffs herein, filed on August 25, 1970, 328 F. Supp. 454. On the argument of the motion, respective counsel were permitted to argue the merits of the aforementioned Opinion. In part, therefore, defendant’s motion has been granted since the argument on the motion partially took the form of a rehearing and this subsequent opinion constitutes a reconsideration of the issues involved.
Defendant reiterated its prior contention that the 1967 revised pension plan presently in operation is not violative of Title VII of the Civil Rights Act of 1964. Under the present plan all employees, male or female, who opt for early retirement at age 60 suffer a 21% penalty reduction from their full pension;. except however, the plan preserves for females added benefits for years worked prior to May 1, 1967,1 which benefits have been described as antecedent or accrued rights.
Plaintiffs have maintained throughout this litigation that the preservation of these allegedly antecedent rights results principally in a perpetuation of the discriminatory practice under the former pension plan. This Court, in accord with that contention, stated in its Opinion of August 25, 1970, at p. 463:
“That exception perpetuates the discriminatory features of the earlier plan by continuing to grant higher pension benefits to women, hired prior to May 1, 1967, than are granted to men hired at the same time.”
Because the present plan continues to implement the effects of the prior discriminatory practice, the result is a present and future discrimination which is violative of Title VII of the Act, United States v. Sheet Metal Workers Int. Ass’n. Local U. 36, 416 F.2d 123 (8th Cir., 1969); Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir., 1970). The relief prayed for by the plaintiffs should, therefore, be granted.
Accordingly, this Court’s Opinion, filed on August 25, 1970, is reaffirmed in all respects.
Therefore, it is on this 24th day of November, 1970,
Ordered that the defendant’s motion is denied and the Opinion of this Court filed on August 25, 1970 remains as the Opinion of this Court respecting all issues herein.
*466SUPPLEMENTAL OPINION
The nature of these actions is disclosed in ray Opinion filed August 25, 1970, 328 F.Supp. 454, which found that the pension plan of the defendant Public Service in its collective bargaining agreement effective May 1, 1967, was violative of the provisions of the Civil Rights Act of 1964, 78 Stat. 241, § 703(a) (1), 42 U.S.C. § 2000e-2(a) (1) (hereinafter the Act). In that Opinion and the Order implementing the same this Court determined that defendant’s noncontributory pension plan treated male and female employees differently and thereby violated the provisions of the Act. The Opinion further stated that “both parties have stipulated that damages would be assessable [in favor of the plaintiffs and against the defendant] if this Court found the pension plan provisions in question to be illegal. Actual calculation of damages, it was agreed, would be undertaken by the parties and then submitted to this Court for review.” Accordingly, the parties were directed to submit to this Court a schedule of the names and positions in employment of all male employees who retired after July 1, 1965 under the age of sixty-five, including therein the respective amounts deducted from their incomes as penalty for early retirement.
On August 11, 1970 the parties filed in this Court a written stipulation supplementing that previously filed on June 17, 1970. The supplemental stipulation provided that “if the Court resolves the meritorious issues favorable to plaintiffs, the Court, at a subsequent date, will determine whether any affirmative relief, i. e., damages, are recoverable in a case of this kind. Conversely if the Court resolves the said issues in favor of the defendant, a judgment for defendant will be entered thereon.”
On February 19,1970, upon due notice, the parties orally argued before the Court cross-motions respecting the issues of damages and the allowance of a counsel fee which had been expressly reserved in the Court’s Order of August 25, 1970. In reserving decision upon the issues presented by the argument the Court informed the defendant that it might later be required to furnish the names of the retirees during the period in question.
Defendant argues that the authority of this Court to award damages by way of affirmative relief is found in 42 U.S.C. § 2000e-5, and rests in the sound judicial discretion of the Court to be exercised where it is demonstrated by competent evidence that the person or persons complaining of the alleged discrimination have sustained pecuniary loss as a direct result of the discrimination found. Where, however, it can not be shown with reasonable certainty that any damage resulted from the discrimination complained of there can be no recovery of damages. Plaintiffs have not discharged their burden of proving damages in this case. The burden of proof upon this issue required that evidence be presented to demonstrate that in the absence of the discriminatory provision of the negotiated pension plan, male employees would have been entitled to retire without a reduction in pension benefits prior to the age of 65. The facts as stipulated by the parties disclose that the revised pension plan of May 1, 1967 fixed retirement ages for all employees at 65 years minimum, 70 years maximum, but with reduced pecuniary benefits, for service subsequent to May 1, 1967, for males opting for early retirement. The negotiated collective bargaining agreement which became effective May 1, 1969 left unchanged the revised plan of 1967 except for the change which permitted the “vesting” of pension benefits for all employees with fifteen years of service at age 50.
The uncontroverted evidence in this case is that the Union, acting in behalf of its entire membership, through collective bargaining negotiations followed by membership approval, adopted three successive labor agreements with the defendant from 1965 to 1969, and accepted the benefits prescribed thereunder. No evidence to the contrary having been produced this Court assumes that all *467male employees opting for early retirement during the period in question did so voluntarily. These certain male employees did, therefore, choose early retirement with the knowledge that they were doing so at reduced pecuniary benefits. The attainment of full pension rights could have been achieved by these individuals by continuing their employ with the defendant to age 65. Plaintiffs fail to refute this claim. The plaintiffs have failed to discharge their burden of proof in this matter since they have not shown that the discriminatory practice precluded any one of the members of the class from ensuring his maximum retirement benefits.
That portion of the Civil Rights Act dealing with affirmative relief, 42 U.S.C. § 2000e-5(g),1 invests the Court with wide discretion. The purposes of any relief deemed appropriate are to ensure compliance with, the Act so as to terminate the practice and eliminate the present effects of past discrimination and make its victims whole. Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970); Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969); Local 53 of Int. Ass’n of Heat & Frost I. & A. Wkrs. v. Vogler, 407 F.2d 1047 (5th Cir. 1969). I am convinced that damages are not necessary to ensure compliance with my previous Opinion and Order. Moreover, increasing the pension benefits of these certain male employees who retired early would not serve to eliminate the present effects of past discrimination; rather it would increase the number of individuals who will be receiving full pension benefits for early retirement when hereafter no employee, be he male or female, will receive full pension benefits upon early retirement. It is beyond question that this pension plan discriminated against all male employees who attained the age of 60 during the period in question, not just those who elected early retirement. Those who retired early did so knowing full well the pecuniary benefits they would receive. This group claims to have been damaged since they received less benefits than females retiring early due solely to the discriminatory plan. But all those males who reached age 60 during the period and did not retire early were also discriminated against; for all these males were forced to continue working to age 65 if they sought to ensure maximum retirement benefits. Surely, they were as affected by the provisions of the plan as those who retired early at reduced pecuniary benefits; indeed it can be said that those who continued in employment until age 65 were caused to continue working up to 5 years longer than the early retirees. Yet, how are these individuals to be recompensed? The damages, if any, are not ascertainable for this class of employees.
All of the above mentioned factors have appealed to the Court’s discretion. There is, however, a further item for consideration. The defendant’s records disclose that during the period in question, being November 15, 1965 to the present, the following number of employees retired early: 6 females, 48 males. The great disparity in the number of male and female employees retiring early, together with the factors hereinabove considered, persuade this Court that this case is not one that calls for any affirmative relief by way of compensatory damages. This Court firmly believes that to grant damages to those male employees who retired early during the period would do nothing more than allow a windfall and a reward for having chosen early retirement to the detriment of those who worked considerably longer to obtain full pension *468rights and who cannot be recompensed for the discrimination that affected them as well.
The questions on this damage issue have caused me much concern. I do not, however, feel that the discriminatory practice complained of herein is the usual type of Title VII complaint. There is no charge of loss of wages, promotions, etc. There have been no precedents to follow in respect to a charge of discrimination in a pension plan. The obscurity of the circumstances under which the term “sex” was included among the statutorily proscribed criteria for employment, and the absence of a clear-cut legislative history as far as this criterion is concerned, further contra-indicates an award of damages. Ultimately the decision herein denying damages rests upon the invocation of this Court’s discretion after considering the totality of the circumstances.
Plaintiffs also seek a reasonable attorney’s fee as part of the costs of this action under the provisions of Title VII, Section 706(k) of the Act, 42 U.S.C. § 2000e-5(k), which permits a court in any proceeding under the Civil Rights Act, in its discretion, to allow the prevailing parties a reasonable attorney’s fee as part of the costs. See, Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) and Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). Counsel argues that the principal reason for awarding counsel fees as costs is that “plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits others in the same manner as himself”; citing Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). It is also argued that “reasonable attorneys’ fees” should reflect not only an hourly compensation but also that the attorney’s achievement in successfully prosecuting a new and difficult case has conferred benefits upon a class of individuals exceeding those by whom he is retained. Freeman v. Ryan, 133 U.S.App.D.C. 1, 408 F.2d 1204 (1968); Brunwasser v. Suave, 400 F.2d 600 (4th Cir. 1968); Featherstone v. Barash, 382 F.2d 641 (10th Cir. 1967).
In light of the circumstances and nature of the litigation and the number of hours spent thereon, I award $7,-500.00 to plaintiffs’ attorney as a reasonable attorney’s fee.
Let an appropriate Order in conformity with the foregoing Opinion be submitted.
. See Chart contained in this Court’s Opinion, filed August 25, 1970, at p. 461.
. “(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may he appropriate, * *