Anjelino v. New York Times Co.

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
12-2-1999
Anjelino v New York Times
Precedential or Non-Precedential:
Docket 98-6024
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Recommended Citation
"Anjelino v New York Times" (1999). 1999 Decisions. Paper 315.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/315
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Filed December 2, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-6024
KAY ANJELINO; ISRAEL CABASSA; ALICIA CARRANZA;
JOANN COANGELO; KATHLEEN DEANGELO; MARGARET
DEANGELO; EDDIE HUMPHREY; SHEILA KELLY; MARK
S. KORNBLUM; ROBERT LAURA; STEPHEN W. MAGGIO;
HILARY MENDELSON; BIRGITTA MENDOLA; LOIS MOSS;
NOREEN MOSS; ARTHUR O'CONNELL; MILAGROS
PEREIRA; RUTH RICHARDSON; NANCY J. SIMATOS;
ELLEN V. SIMS; ANASTASIOS SPARTOS;
DANIEL STRINGER; LILLIAN SULLIVAN; ROSA M.
TORRES; ANNA MARIE TRAUSE
v.
THE NEW YORK TIMES COMPANY; ARTHUR OCHS
SULZBERGER, JR.; NEW YORK MAILERS' UNION NO. 6;
GEORGE MCDONALD; ITU NEGOTIATED PENSION PLAN
(D.C. Civil No. 92-cv-02582)
KAY ANJELINO; ISRAEL CABASSA; ALICIA CARRANZA;
JIMMY CARROLL; JOANN COANGELO; MAUREEN
CONROY; MAUREEN DOLPHIN; KATHLEEN DEANGELO;
MARGARET DEANGELO; JACKIE FOGARTY; EDDIE
HUMPHREY; JANET KHOE; SHEILA KELLY; DENNIS
KNAPP; MARK S. KORNBLUM; ROBERT LAURA;
STEPHEN W. MAGGIO; HILARY MENDELSON; BIRGITTA
MENDOLA; LOIS MOSS; NOREEN MOSS; ARTHUR
O'CONNELL; MILAGROS PEREIRA; RONALD PLAKIS;
RUTH RICHARDSON; NANCY J. SIMATOS; ELLEN V.
SIMS; ANASTASIOS SPARTOS; DANIEL SPRINGER;
LILLIAN SULLIVAN; ROSA M. TORRES;
ANNA MARIE TRAUSE
v.
THE NEW YORK TIMES COMPANY; ARTHUR OCHS
SULZBERGER, JR.; NEW YORK MAILERS' UNION NO. 6;
GEORGE MCDONALD; ITU NEGOTIATED PENSION PLAN
(D.C. Civil No. 93-cv-02870)
Kay Anjelino, Israel Cabassa, Alicia Carranza,
Joann CoAngelo, Kathleen DeAngelo, Margaret
DeAngelo, Eddie Humphrey, Sheila Kelly, Mark
S. Kornblum, Robert Laura, Stephen W.
Maggio, Hilary Mendelson, Birgitta Mendola,
Lois Moss, Noreen Moss, Arthur O'Connell,
Milagros Pereira, Ruth Richardson, Nancy J.
Simatos, Ellen V. Sims, Anastasios Spartos,
Daniel Stringer, Lillian Sullivan, Rosa M.
Torres and Anna Marie Trause,
Appellants
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action Nos. 92-cv-02582/93-cv-02870)
District Judge: Honorable William H. Walls
Argued November 5, 1998
Before: SCIRICA and ROTH, Circuit Judges, and
SCHWARTZ,1 District Judge
(Filed December 2, 1999)
_________________________________________________________________
1. Honorable Murray M. Schwartz, United States District Court Judge for
the District of Delaware, sitting by designation.
2
Josee G. Charvet, Esquire (Argued)
Shneyer & Shen, P.C.
1085 Teaneck Road
Teaneck, New Jersey 07666
Michael Shen, Esquire
Shneyer & Shen, P.C.
2109 Broadway, Suite 206
New York, NY 10023
Attorneys for Appellants
Paul Salvatore, Esquire (Argued)
Loren Gesinsky, Esquire
Ravi Motwani, Esquire
Proskauer Rose LLP
1585 Broadway
New York, NY 10036-8299
Attorneys for Appellees
The New York Times Company
and Arthur Ochs Sulzberger, Jr.
Paul L. Kleinbaum, Esquire
Zazzali, Zazzali, Fagella & Nowak
One Riverfront Plaza
Newark, NJ 07102
Richard Rosenblatt, Esquire (Argued)
Boyle, Tyburski & Rosenblatt
8085 East Prentice Avenue
Englewood, CO 80111
Attorneys for Appellees
New York Mailers' Union No. 6
and George McDonald
OPINION OF THE COURT
ROTH, Circuit Judge:
The appellants, a group of former mail room employees of
the New York Times Company (the "Times") brought an
employment discrimination action against the Times; its
publisher, Arthur O. Sulzberger, Jr.; New York Mailers'
3
Union No. 6; and George McDonald, the president of the
Union. The appellants were members of the Union while
employed by the Times. All the appellants, female and male,
Hispanic and non-Hispanic, alleged discrimination by the
Times on the basis of sex. In particular, they alleged sex-
based discrimination with respect to compensation and
assignment of work and also retaliation; the female
appellants also alleged sexual harassment. In addition, the
Hispanic appellants alleged discrimination and harassment
because of race, color, and national origin.2
In response to the Times' pre-trial motions, the District
Court dismissed the Amended Complaint in its entirety.
The court reached the merits of the claims in only a few
instances. Most counts were dismissed for lack of subject
matter jurisdiction due to the appellants' failure to exhaust
administrative remedies or to their lateness infiling
charges. The male appellants' sex discrimination claims
were dismissed for lack of standing to sue under Title VII
and NJLAD. The District Court granted summary judgment
for appellees on the remaining counts.
We conclude that the Amended Complaint should not
have been dismissed in its entirety. With respect to the first
issue before us, the standing of the male appellants to sue
for sex discrimination, we will reverse. We do so based on
our determination that "indirect" victims of discrimination
have standing to sue under Title VII if they allege a claim
of injury-in-fact that is redressable at law. As to most of
appellants' other claims of sex and race discrimination and
retaliation, we find either that the District Court applied an
incorrect legal standard in finding that it lacked jurisdiction
or that it misinterpreted the significance of certain evidence
in the record that we find probative of discrimination. We
will reverse the dismissal of these claims. We will, however,
affirm the dismissal of the claims of sex discrimination and
sex-based retaliation under section 1981 because section
_________________________________________________________________
2. The appellants in this action include nineteen females and nine males;
four are Hispanic. App. at 347. The Hispanic appellants' allegations of
discrimination on the basis of race, color, or national origin will be
referred to as "race discrimination," except where our analysis requires
a distinction to be drawn among these categories.
4
1981 does not reach these forms of discrimination. We also
will affirm the dismissal of the Labor Management Relations
Act of 1947 ("LMRA") and the Labor Management Reporting
and Disclosure Act of 1959 ("LMRDA") claims against the
Union and the Times because the appellants failed to
exhaust the Union's internal grievance procedures. In
addition, we will affirm the dismissal of the discrimination
and retaliation claims brought against the Union because
the Union was not the appellants' employer and the
appellants failed to exhaust the Union's grievance
procedures. Finally, we will affirm the District Court's
decision to deny the appellants' further discovery, but we
will reverse the sanctioning of appellants' counsel for
requesting reconsideration of the discovery decision.
I. Factual Background
The genesis of this case is a controversy between the New
York Times and its union shop, on the one hand, and
female and Hispanic workers on the other. Before the late
1970s, the Times' mail room employees had been almost
exclusively non-minority male. Even at present, women
constitute only a fraction of the Times' mailers. Indeed, the
Union and the Times do not dispute the appellants' claim
that the Union admitted them reluctantly, under order of a
review board.
This dispute is a part of a lengthy history of competition
among laborers for jobs in the New York metropolitan area
newspaper industry. In particular, there has been a long-
standing disagreement between labor and management
concerning the use of substitute workers to assemble the
newspapers. The success or failure of collective bargaining
efforts to resolve this conflict is central to the allegations in
this action. During the relevant period, the Union
represented mail room employees at the Times, the New
York Daily News, and the New York Post.
A. Terms of the Collective Bargaining Agreement and the
Baar Award
In 1959, after a series of disputes between management
and labor, an arbitration board, the Baar Commission,
developed new practices for hiring and promotion of mailers
5
at various New York City newspapers. These practices were
set forth in the "Baar Award." The Baar Award was
designed to ensure the orderly hiring of extra workers when
there was not sufficient regular staff to perform necessary
daily tasks.
In 1984, under the terms of the collective bargaining
agreement (the "CBA") and the Baar Award, 3 the Times and
the Union, along with other area publishers, agreed to a
mail room staffing scheme. Under this plan, the mail room
was to be staffed by two groups of workers: "situation
holders," who were scheduled to work five shifts per week,
and "extras," who were substitute workers. Extras were
hired according to seniority at daily "shapes." Management
determined extras' seniority on the basis of an annual
review of their work records. This review was conducted
each year on February 15. Seniority was determined by
evaluating the mailer's position on the publisher's "priority
list." The priority list divided mailers intofive categories, "A"
through "E." When first hired, extras were placed into
category "E." Extras might advance from category "E" to "D"
on the priority list by working at least fifteen shifts per
quarter of each year. Although extras might work shifts for
any publisher who was a party to the CBA, extras would
not appear simultaneously on more than one employer's
hiring list. Moreover, continuous employment with a single
publisher increased the likelihood of advancement on the
priority list. Extras, who transferred from one publisher to
another, received credit for shifts worked for the prior
employer during the year; transfers were, however, placed
at the bottom of the appropriate priority list category of the
new employer. In this way, extras who expressed interest
and were successful in obtaining employment at daily
shapes -- preferably continuous and regular employment
with a single publisher -- could advance along the priority
list from category "E" to categories "D" and "A-B."4
_________________________________________________________________
3. This CBA became effective on March 31, 1984, and, as a result of a
series of modifications and extensions, runs through March 30, 2000.
4. The Baar Award also provided for a "C" list. Mailers on the "C" list
were not hired according to seniority, however, but "according to the
needs of the office."
6
If the annual review of an extra's work record showed
that he or she had worked at least 180 shifts during the
preceding year,5 the individual would be placed into
category "A" or "B" on the priority list. If, however, an extra
failed to meet the requirements for advancement to "A" or
"B" for two out of three successive years, that individual
was demoted, or "delisted." Delisted mailers could reapply
to work as mailers for publishers that were signatories to
the CBA. Their status on a publisher's list would not,
however, reflect credit for shifts worked prior to delistment.
A four-person board, comprised of two representatives each
from the Times and the Union, reviewed complaints arising
from the delistment or transfer of extras. If this review
board could not agree on the propriety of an extra's
delistment or transfer, the complaint was referred to an
arbitrator for resolution.
B. The Appellants' Claims of Sex and Race Discrimination
The appellants have been employed in the Times' mail
room as extras. As such, they were subject to the terms of
the CBA and the Baar Award. During the mid-1980s, the
appellants were placed on the "D" priority list. Although the
priority list system allegedly is a facially neutral process for
assigning work to mail room employees, the Amended
Complaint alleges that, during their employment at the
Times, the appellants experienced sex- and race-based
discrimination on a daily basis, which greatly limited their
ability to advance on the list. The alleged discrimination
occurred with respect to compensation, terms, and other
conditions of employment; it included sexual and racial
harassment and retaliation for the filing of the instant
lawsuit and charges before the EEOC. The allegations of the
Amended Complaint, recounted in the light most favorable
to the appellants, are outlined below.
1. Compensation/Assignment of Work
During their employment by the Times, appellants allege
that sex- and race-based discrimination repeatedly limited
or impeded their ability to advance on the priority list and,
thus, to obtain work and earn wages at rates comparable to
_________________________________________________________________
5. The requirement was 160 shifts prior to 1962.
7
those of males and/or non-Hispanic white workers. During
the period from the mid-1980s through and beyond August
of 1992, the appellants claim to have experienced
discrimination in compensation and work assignment
prospects. They allege that policies regarding seniority and
hiring from the priority list repeatedly were manipulated in
ways that limited the employment opportunities of female
and Hispanic workers. They claim, for instance, that hiring
for work shifts commonly stopped just before the names of
women on the priority list were reached. The exclusion of
women from employment caused them to lose hundreds of
hours of work and wages and also to lose seniority. In
addition, if hiring was stopped at the point where females
showed up on the list, males who were listed among those
females would not be hired.
In other instances, appellants claim, the seniority system
and Baar Award were violated altogether. On these
occasions, men, who had less seniority on the priority list,
were hired for work shifts instead of more experienced
women. Appellants claim that this type of "leap-frogging"
occurred repeatedly over time, including on the following
dates: August of 1986, when approximately 275 Daily News
mailers, the vast majority of whom were male, were placed
ahead of female mailers on the Times' priority list; 6 March
through June of 1998, when fifteen Post workers were
placed ahead of female mailers on the Times' priority list;
and October of 1990, when sixteen Daily News situation
holders who were on strike from their paper were placed
ahead of Times' mailers, including the appellants, causing
the appellants to be unemployed for three weeks.
Appellants contend that on these occasions and at other
times men, who had or should have had less seniority than
women on the list, were hired as substitute workers.
Appellants also claim that, in numerous other ways,
women were made to work under conditions that were
different from and less favorable than the terms and
conditions under which men, in particular non-Hispanic
_________________________________________________________________
6. Appellants allege that many of the Daily News workers were allowed to
maintain their position on the Daily News' priority list, in violation of
the
Baar Award. See, however, Part I.C for the Times' response to this claim.
8
men, worked. Appellants charge that the Times
discriminated against them when assigning jobs. Appellants
claim that women more often worked in unpleasant parts of
the work place and performed the least desirable work. For
example, rather than working on the presses or insert
machines, women often worked in the hand insert section,
or the "rock pile," an assignment that required constant
standing, disposal of waste, and restricted movement.
Women also routinely were assigned to perform
objectionable tasks such as serving coffee to management
and other personnel; men, including men with less
seniority than women, were not asked to perform such
chores. Women frequently were assigned to perform tasks
that required them to work under close scrutiny of
supervisors, while men were assigned jobs that allowed
more autonomy.
Appellants further charge that they were discriminated
against in their benefits and compensation. Appellants also
allege that women were required to clean up at the end of
their shifts, whereas most men were not, and that women
were consistently treated differently and worse than male
employees with respect to work breaks. Women's bathroom
breaks were counted as their coffee breaks, while men were
permitted to take both coffee and bathroom breaks. Women
were required to complete an entire work shift in order to
be paid for the full shift, whereas men were paid for
working the full shift even though they did not complete it.
Women were not given "bonus" jobs, as were male workers.
Regular situation holders frequently were hired for overtime
shifts when extras were available for work, thereby allegedly
decreasing work opportunities for female mail room
workers. Appellants also claim that only women were
required to work mandatory overtime when hired,
sometimes five shifts in a row, so that they became
exhausted and were discouraged from seeking work. Also
they assert that women were denied medical and other
benefits.
Finally, the appellants make specific allegations
concerning the Union. They claim that the matriculation of
women into the Union was improperly delayed for arbitrary
and discriminatory reasons. Even after they were
9
matriculated, the appellants allege that the leadership of
the Union denied them the right to speak at Union
meetings and otherwise to participate fully in the Union on
the same terms as other members. In addition, the
appellants contend that Union leaders ignored their
complaints of harassment and discrimination, including
complaints that the terms of the Baar Award often were
violated or manipulated in a manner that diminished their
employment opportunities.
2. Sexual and Racial Harassment
In their EEOC charges and the addenda thereto, the
appellants claimed that they had been subjected to"an
abusive atmosphere" because of sex.8 In the original and
amended complaints, under a heading entitled "hostile
work environment," the appellants alleged that crude
language and behavior were directed at the female
appellants by male co-workers. Appellants further stated
that if they complained about such treatment, they were
confronted with "ridicule" or "hostility." In addition, they
alleged that a hostile work environment was created by
"photographs of nude women and pornographic magazines
[which] were displayed and directed at women."9
The allegations regarding sexual harassment were
described most explicitly in depositions and affidavits that
appellants proffered in response to appellees' motions to
dismiss their claims and/or for summary judgment. In
these documents, appellants claimed that their workplace
was an environment in which sexually harassing language
and acts routinely were inflicted upon appellants by male
employees of the Times and/or Union members. Appellants
claimed that neither supervisory personnel at the Times nor
Union officials proscribed such harassment, punished its
perpetrators, or otherwise discouraged it. In particular,
appellants alleged that the Times and the Union were aware
of and allowed male employees to engage in the following
conduct: the display of pictures of nude or lingerie-clad
women throughout the work place, but especially in female
_________________________________________________________________
8. See, e.g., App. at 162.
9. App. at 350.
10
workers' line of vision; the throwing and display of pictures
of naked men near the door of the women's restroom,
again, directly within women's line of vision; the verbal
harassment of female workers; the "mooning" of female
workers; and the hiring of a female stripper, who performed
in the workplace during work hours, removing all of her
clothing, with the exception of her "G string."10
With respect to the alleged verbal harassment, male
employees of the Times and/or Union members yelled at
and otherwise subjected women to demeaning or
threatening language. Appellant Ellen V. Sims alleged that
she repeatedly was told, "a woman's place is in the kitchen"
and that she was asked, "[W]hat are you doing here[?]
[D]on't you got a home to go to[?]" When in 1993 two female
appellants asked a foreman if they could use the restroom,
they allegedly were told to "piss under the machine."
During the Christmas season in 1991, Times' foreman
Upton allegedly stated to appellants Nancy J. Simatos,
Hilary Mendelson, and Lillian Sullivan, "If you want to be
here to do a man's work, then work like a man . . .." One
female appellant who needed assistance with her work from
a male worker was told repeatedly to "get Jesus to help
her," rather than him. Other male employees are alleged to
have made the following remarks to various appellants:
"[Management] never should have let women work here [the
mailroom]"; "we don't want women here"; "they should
never let women in the workplace--their place is in the
kitchen"; "run without them [women] and you'll have no
problems on the machine"; "if you want a man's pay, you'll
have to do a man's work"; and "why don't you get out of our
shop". Male employees also allegedly referred to women as
the "bottom of the barrel."11
Moreover, appellants claim that male employees of the
Times and/or Union members frequently made offensive
comments about women's anatomy. Foreman Larry
Levinson allegedly made comments to appellant Sims
"about the size of women's breasts" and "women's
_________________________________________________________________
10. See, e.g., App. at 1688, 1691, 1736-40, 1756, 1795-96, 2115-16.
11. See, e.g., App. at 1735, 1755, 1829, 1835, 1837, 1839-40, 2104-06,
2187-88, 2206, 2262-63, 2318, 2360-65.
11
buttocks." Another employee yelled to an appellant who had
been asked her priority number during a hiring session, "Is
that your number or your bust size?" Appellant Anna Marie
Trause's breasts were called "bouncy," and her mail
coworkers nicknamed her "Bouncy." Again, referring to
Trause's breasts, supervisor Ackerman would "turn around
to the guys" and comment "moo, moo ... do you want some
milk?" Ackerman repeatedly made this taunt concerning
Trause's breasts over the course of the work day, with other
male workers responding with laughter. Supervisor
Zimmerman allegedly told Trause and other women to "go
back to your hands and knees, that's where you belong to
begin with." Appellant Anjelino was told that she "looked
like a man."12
In addition to these comments and to the discriminatory
assignment of work, the Hispanic appellants claim that
they were subjected to racially harassing statements. These
statements included being told on several occasions, "Go
back to Puerto Rico if you can't run the machine." On
numerous occasions, the Hispanic appellants allegedly were
told: "[S]peak English, no Spanish. ... We're in America," or
"Habla Ingles?" Moreover, they claim to have been
constantly taunted with comments like, "You guys make
good rice and beans, right?"12
As a result of such verbal and sexual harassment, the
appellants were often emotionally distraught at work, many
times, to the point of tears.13
3. Retaliation
The appellants assert that this conduct increased after
they complained about their mistreatment. For example, in
a letter to appellee Sulzberger, dated January 30, 1992,
appellants' counsel set out the basis for this suit. Shortly
thereafter, a copy of the letter was allegedly posted on two
employee bulletin boards, with derogatory phrases written
across the letter such as: "Dykes unite," "Eat Shit," "Ass
_________________________________________________________________
12. See, e.g., App. at 1571, 1798-1800, 2104-05, 2314, 2329-31, 2358-
59.
12. See App. at 1861-66, 1999-2022, 2235, 2256-58.
13. See, e.g., App. at 1696, 1798-1801, 1835, 1866, 1868, 1863, 2368.
12
Holes," "Burger King is hiring," "Scabs," and "Anti-Union."
One of the bulletin boards on which the defaced letter was
placed was enclosed in glass and locked; only Times'
supervisors had keys to it.14
The retaliation became harsher after the administrative
complaints and the suit were filed in May and June of
1992. For example, on June 25, 1992, just after suit was
filed, the president of the Union allegedly read off the list of
plaintiffs' names at a union meeting. Another Union official,
Tommy Murphy, allegedly told some of the female
appellants, "If you think you're being discriminated against
now, wait until we get through with you." Moreover,
appellants claim that appellees accelerated the practice of
allowing men, who had not met the requirements for
progressing on the priority list, to leap-frog over the
appellants. Finally, in August of 1992, all but one of the
appellants were delisted from the priority list although
other mailers who had not complied with the terms of the
Baar Award were not. Appellants assert that the delistment
was improper under the terms of the Baar Award. However,
rather than helping the appellants, the Union delayed their
appeal of the delistments.
Even after the delistment of the appellants, the Times
and the Union allegedly continued to retaliate against them
for complaining about their mistreatment. Although many
jobs were open, the Times usually hired new personnel,
including non-Union workers, rather than the delisted
appellants. When appellants were finally rehired, they were
assigned to the worst available jobs. Co-workers continued
to harass them verbally; some appellants also claim to have
been physically threatened by co-workers. When appellants
complained repeatedly about this mistreatment, the Union
failed to address or to ameliorate it.15
C. The Appellees' Rebuttal
In response to the appellants' allegations, the Times
argues that at all relevant times it complied with the Baar
_________________________________________________________________
14. See App. at 1110-11, 1114, 1126, 1142-43.
15. App. at 1764-78, 1790-93, 1803-08, 2097-2101, 2111-12, 2345,
2350-55.
13
Award's policies on delistment. The Times asserts, for
instance, that the appellants' claims that extras were not
hired according to seniority is wrong, that "most plaintiffs
freely admitted" as much, and that the appellants'
"generally conceded" that the least desirable jobs were
assigned to those with the least priority. The Times also
claims that the appellants' complaint regarding the"leap-
frogging" of 275 Daily News and Post workers over them in
1987 was settled on appeal by an arbitrator, who ruled
against the appellants.16 Moreover, the Times and Union
argue that contrary to the appellants' contentions, all
extras who failed to meet the Baar Award criteria for
remaining on the Times' priority list were delisted in 1989,
1991, and August 1992. Therefore, they claim, the
delistment of the appellants was not a result of
discrimination, but rather, of their failure to meet neutral
criteria for continued employment as extras. The Union also
submits that five of the delisted appellants were reinstated
after their claims were reviewed by the arbitrator.
Moreover, the Times claims that, even if true, the
appellants' allegations that they were subjected to
discriminatory treatment with respect to "taking of breaks,
using the restrooms, getting coffee for other employees" and
other situations "amounted to no more than slight
annoyances" based on the appellants' "subjective beliefs."
The Times and the Union argue that the appellants never
complained about these incidents, either to the Times
management or through the Union's grievance procedures.
The Times disputes the appellants' claims that
"inappropriate pictures of undressed or partially undressed
women" were posted in the workplace. In addition, the
Times notes that none of the appellants allege that such
pictures were posted after mail room operations moved to a
new plant. The Times argues that, due to the date of the
move, these claims are untimely. In addition, the Times
notes that the appellants never complained about these
postings, either to the Times management or through the
Union's grievance procedures.
_________________________________________________________________
16. Citing Anjelino v. New York Times, 1993 WL 170209 at *5-6 (D.N.J.
May 14, 1993).
14
Regarding the sexually and racially harassing language,
the Times contends that these claims are not sufficiently
specific because the appellants are not "able to attach a
date to them." In addition, the Times claims that"only
coworkers" made the comments. Finally, the Times notes
that the appellants never complained about these
comments, either to the Times management or through the
Union's grievance procedures.
The Times and the Union respond to the allegations that
the Union violated the LMRA and LMRDA with the
argument that they complied with the Baar Award, a claim
which "none of the plaintiffs . . . disputes." At the same
time, the Times asserts that "the few plaintiffs who
attempted to give any examples of alleged breaches of the
[CBA] or the Union's duty of fair representation related
nothing but subjective beliefs and/or incidents that were
time-barred." Moreover, appellants did not file the
appropriate grievances with the Union.
II. Procedural History
A. EEOC Charges and The Complaint
Between May 21 and July 30, 1992, the appellantsfiled
charges of sex and/or race, color, and national origin
discrimination and retaliation with the EEOC and the New
Jersey Division of Civil Rights ("NJDCR").
The charges of the female appellants alleged that 1) they
were "subjected to terms and conditions of employment less
favorable than that accorded of [sic] male mailers, including
but not limited to being denied equal numbers of work
shifts"; 2) that they "complained about the discriminatory
treatment accorded them"; 3) that "[s]uch discriminatory
terms and conditions of employment was [sic] even more
intensified and continued throughout [their] tenure"; 4) that
they were "discriminated against with respect to wages,
benefits, abusive atmosphere and other terms and
conditions of employment, because of sex and retaliation";
and 5) that "[t]he discrimination ... is a part of a pattern
and practice of sex discrimination" that "resulted from a
15
continuing and intentional policy of sex discrimination by
respondents, which predates 1980."17
The charges of the male appellants included all the
allegations made by female appellants, with the exception of
the first one. In addition, the male appellants alleged that
the men were "discriminatorily treated because [their]
priority number[s] on the workplace seniority list [were] in
between the priority numbers of the women mailers. Such
discrimination was based on sex."18
The charges of the Hispanic appellants included all the
allegations made by female appellants (with the exception of
the one Hispanic male appellant, whose charges included
the allegations made by the male appellants). In addition,
the Hispanic appellants alleged that they were accorded
less favorable terms and conditions of employment than
that accorded "White . . . mailers" and that the pattern of
discrimination to which they were subjected also was based
on "race, national origin and color discrimination by
Respondents, which predates 1980."19
On September 17, 1992, appellants' counsel wrote to the
EEOC, requesting "right to sue" letters because he had
been informed by the EEOC that it could not complete its
investigation within 180 days. Each appellant received a
"notice of right to sue," dated October 5, 1992.
This action was filed in federal District Court on June 25,
1992. On August 24, appellants' counsel faxed a copy of
the complaint to the EEOC. On September 17, twenty two
of the appellants filed new charges with the EEOC. In the
second group of charges, the appellants alleged retaliation
by appellees as a result of their filing of the initial charges
and the instant lawsuit. The EEOC apparently did not issue
right to sue letters regarding the allegations of retaliation.
B. The Amended Complaint
The complaint was amended on October 9, 1992, to
allege eight counts of sex, race, color, and national origin
_________________________________________________________________
17. See, e.g., App. at 162.
18. See, e.g., App. at 174.
19. See, e.g., App. at 192, 451.
16
discrimination and retaliation, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C.S 2000(e);
42 U.S.C. S 1981; and the NJLAD; violation of 29 U.S.C.
S 411 et seq.; and violation of 29 U.S.C. S 185(a). The
Amended Complaint also alleged continuing violations and
retaliation, based on the appellants' delistment in August of
1992 and other adverse employment consequences as a
result of their filing of the initial EEOC charges and the
original complaint in this action.20
C. Disposition of The Claims
In orders dated May 14, 1993, and September, 10, 1993,
the District Court dismissed or limited all counts of the
Amended Complaint, pursuant to Rules 12(b)(1) or 12(b)(6),
Fed. R. Civ. P. The majority of the Title VII and NJLAD sex
and race discrimination and retaliation claims were
dismissed, pursuant to Rule 12(b)(1), for failure to exhaust
administrative remedies and for lack of timeliness,
including lack of continuing violations; the male appellants'
Title VII and NJLAD claims were dismissed under Rule
12(b)(6), for lack of standing to sue. Anjelino v. New York
Times, 1993 WL 170209 at *5, 8, 10-11 (D.N.J. May 14,
1993); see also Anjelino, No. 92-2582 (D.N.J. Sept. 10
1993). Pursuant to Rule 12(b)(6), the court limited the
surviving sex and race discrimination claims brought under
NJLAD to events occurring after June 1990 and the
surviving race discrimination claims under Title VII to
events occurring after July 1991. The section 1981 sex
discrimination claims were dismissed under Rule 12(b)(6)
on grounds that they are not cognizable under the statute.
Many of the section 1981 race discrimination claims were
dismissed for lack of timeliness, pursuant to Rule 12(b)(1).
Anjelino, 1993 WL 170209 at *11. The surviving section
1981 race discrimination claims were limited to events
occurring after June 1990.
In the Order of May 14, 1993, and in an Order dated
August 22, 1996, the court dismissed or limited the
_________________________________________________________________
20. The Amended Complaint also added three new plaintiffs-appellants,
Maureen Dolphin, Jacqueline Fogarty, and Ronald Plackis, who did not
file charges of any kind with the EEOC. Anjelino, 1993 WL 170209 at *4.
See discussion infra of exhaustion.
17
appellants' labor relations claims under section 301 of the
LMRA and Title I of the LMRDA. Many claims were
dismissed under Rule 12(b)(1) for failure to exhaust and for
lack of timeliness. The remaining LMRA claims were limited
to events occurring after June 9, 1992. Anjelino, 1993 WL
170209 at *14; Anjelino, No. 92-2582 (D.N.J. Aug. 22,
1996).
In an Order dated July 8, 1993, the court denied the
appellants' motion for reconsideration of the May 14 Order.
Then, on September 10, 1993, the court denied appellants'
motion to review the appropriate statute of limitations
under the NJLAD. Anjelino, No. 92-2582 (D.N.J. July 8,
1993).
On January 29, 1996, the court affirmed the magistrate
judge's recommendation to deny discovery to the
appellants. Anjelino, No. 92-2582 (D.N.J. Jan. 29, 1996).
On May 13, 1996, as a result of appellants' motion
objecting to the discovery decision, the District Court
sanctioned their counsel in the amount of $5,000,
pursuant to 28 U.S.C. S 1927, on grounds that the motion
was frivolous. Anjelino, No. 92-2582 (D.N.J. May 13, 1996);
see also Anjelino, No. 92-2582 (D.N.J. May 1, 1996).
In an Order dated August 22, 1996, the Court granted
summary judgment for defendants on the remaining claims
of the Hispanic appellants (which had been severed from
the claims of the non-Hispanic appellants on October 25,
1995, during the discovery process). These included Title
VII sex discrimination claims by three female Hispanics,
which related to events occurring after July 1991 and their
NJLAD sex discrimination claims for events occurring after
July 1990; the Hispanic appellants' race discrimination
claims under section 1981 and NJLAD for events occurring
after June 1990 and under Title VII, for events occurring
after July 1991; the Hispanics' national origin claims under
Title VII for events occurring after July, 1991; the
Hispanics' retaliation claims under Title VII, NJLAD, and
section 1981; and the Hispanics' LMRA claim for events
occurring after June 9, 1992. Anjelino, No. 92-2582 (D.N.J.
Aug. 22, 1996).
Pursuant to an order dated March 2, 1997, the court
dismissed the Amended Complaint in its entirety (i.e., all
18
remaining claims of the non-Hispanic appellants), including
the remaining Title VII, NJLAD, and section 301 claims.
These claims were dismissed on summary judgment
grounds. Anjelino, No. 92-2582 (D.N.J. Mar. 2, 1997).
III. Jurisdiction and Standards of Review
We exercise appellate jurisdiction over the parties'
appeals pursuant to 28 U.S.C. S 1291.21 The District Court
had subject matter jurisdiction by virtue of 28 U.S.C.
S 1331, as well as 29 U.S.C. SS 185(a) and 412, and 42
U.S.C. S 2000(e). The District Court exercised supplemental
jurisdiction over the pendant state claims pursuant to 28
U.S.C. S 1367(a).
_________________________________________________________________
21. In an Order dated April 4, 1996, the magistrate judge severed the
claims of the Hispanic appellants from those of the non-Hispanic
appellants, after finding that discovery had been completed with respect
to the former, but not as to the latter. Subsequently, on May 13, 1996,
the District Court dismissed the claims of the Hispanic appellants. The
claims of the non-Hispanic appellants were dismissed in an Order dated
March 14, 1997. The Hispanic appellants filed an appeal of the May
1996 Order dismissing their claims on March 18, 1998, at the same time
that the appeal of the non-Hispanic appellants wasfiled. Thus, a single
appeal was filed on behalf of all appellants.
The Times argues that the appeal of the Hispanic appellants is
untimely. The Times asserts that the Hispanics' notice of appeal should
have been filed within thirty days of the May 1996 Order dismissing
their claims. We conclude, however, that the Hispanics' notice of appeal
was timely. This case was not appealable to the Third Circuit until the
District Court reached a final disposition of all claims made by all
parties
to this action. See Andrews v. United States, 373 U.S. 334 (1963);
Jackson v. Hart, 435 F.2d 1293 (3d Cir. 1970). The docket sheet in this
action shows that case was closed on March 3, 1998, and that the
record was deemed "complete for purposes of appeal" on March 30,
1998. Thus, the entire controversy was resolved in March of 1998. To
the extent that it is not clear that the entire controversy was not
resolved
until that date, the onus for the uncertainty lies with the court that
issued the order severing the Hispanics' claims during the discovery
process, rather than with the appellants. See Rule 54(b), Fed. R. Civ. P.
(stating that in the absence of an express directive from the District
Court, a judgment upon fewer than all claims or parties to an action
does not terminate the action).
19
As to our scope of review, we will start our analysis with
the District Court's dismissal of certain claims under Rule
12(b)(1). The District Court's Opinion and Order of May 14,
1993, dismissed many counts of the complaint for lack of
subject matter jurisdiction, based on the appellants' failure
to exhaust administrative remedies and on the bar of the
statute of limitations. In dismissing these counts under
Rule 12(b)(1), the court did not attach any presumption of
truthfulness to appellants' allegations but instead put the
burden of establishing jurisdiction on appellants. See
Anjelino, 1993 WL 170209 at *5, citing Mortensen v. First
Federal Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977), and Millipore Corp. v. University Patents, Inc., 682
F. Supp. 227, 231 (D. Del. 1987).
There is a fundamental difference between review under
Rule 12(b)(1), where existence of disputed material facts will
not preclude the court from evaluating the merits of the
jurisdictional claim, see Mortensen, 549 F.2d at 891, and
review under Rule 12(b)(6), where the court is required to
accept as true all the allegations of the complaint and all
inferences arising from them, see Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984). Our first task is to
evaluate the propriety of employing Rule 12(b)(1) in
dismissing the counts that failed to meet exhaustion or
timeliness requirements. Our review is plenary. Hornsby v.
United States Postal Service, 787 F.2d 87, 89 (3d Cir. 1986).
We conclude that the District Court erred in considering
the Times' failure to exhaust and timeliness defenses as
grounds for dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction. Although it is a "basic tenet" of
administrative law that a plaintiff should timely exhaust all
administrative remedies before seeking judicial relief, the
purpose of this rule is practical, rather than a matter
affecting substantive justice in the manner contemplated by
the District Court. The rule is meant to "provide courts with
the benefit of an agency's expertise, and serve judicial
economy by having the administrative agency compile the
factual record." Robinson v. Dalton, 107 F.3d 1018, 1020
(3d Cir. 1997). Failure to exhaust is "in the nature of
statutes of limitation" and "do[es] not affect the District
Court's subject matter jurisdiction." Hornsby, 787 F.2d at
20
89 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
392-98 (1982)). The characterization either of lack of
exhaustion or of untimeliness as a jurisdictional bar is
particularly inapt in Title VII cases, where the courts are
permitted to equitably toll filing requirements in certain
circumstances. Robinson, 107 F.3d at 1021 (citing Bowen v.
City of New York, 476 U.S. 467, 482 (1986)).
Thus, the District Court should have considered the
exhaustion and timeliness defenses presented in this case
under Rule 12 (b)(6), rather than under Rule 12(b)(1).
Robinson, 107 F.2d at 1022; accord Rennie v. Garret III, 896
F.2d 1057, 1061-62 (7th Cir. 1990). As a result, we will test
the exhaustion and timeliness defenses under Rule 12(b)(6)
or Rule 56, as appropriate.
Our review of the District Court's dismissal of appellants'
Title VII, NJLAD, and section 1981 claims pursuant to Rule
12(b)(6) or Rule 56 is plenary. Ingram v. County of Bucks,
144 F.3d 265, 267 (3d Cir. 1998); Lake v. Arnold, 112 F.3d
682, 684-85 (3d Cir. 1997). To the extent that the court
considers evidence beyond the complaint in deciding a Rule
12(b)(6) motion, it is converted to a motion for summary
judgement. Rule 12(c); see also Robinson, 107 F.3d at
1021.
As with the anti-discrimination statutes, our review of the
District Court's dismissal of appellants' LMRA and LMRDA
claims on grounds of timeliness and failure to exhaust
administrative remedies is plenary. Likewise, our review is
plenary where the court granted summary judgment on the
appellants' labor claims, pursuant to Rule 56(c). See
Brenner v. Local 514, United Brotherhood of Carpenters &
Joiners of America, 927 F.2d 1283, 1287 (3d Cir. 1991).
We review the District Court's order affirming the
magistrate judge's decision denying discovery to the
appellants, as well as the Court's imposition of sanctions,
under an abuse of discretion standard. See Bayar AG v.
Betachem, Inc., 173 F.3d 188, 189-90 (3d Cir. 1999);
Fellheimer, Eichen & Braverman v. Charter Tech, Inc ., 57
F.3d 1215, 1223 (3d Cir. 1995).
21
IV. Discussion
A. Matters Dismissed on Preliminary Grounds
We will start our consideration of the issues on appeal
with the counts dismissed by the District Court on grounds
of standing, failure to exhaust, and timeliness.
1. Title VII and NJLAD Sex and Race Discrimination and
Retaliation Claims
a. Standing of Males to Sue for Sex Discrimination
A party invoking federal jurisdiction must establish that
he has standing to sue within the meaning of Article III,
section two of the Constitution, which limits the courts to
hearing actual cases or controversies.22 Standing is
established at the pleading stage by setting forth specific
facts that indicate that the party has been injured in fact or
that injury is imminent, that the challenged action is
causally connected to the actual or imminent injury, and
that the injury may be redressed by the cause of action.
See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992); Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S.
464, 473 (1982). Courts assess whether a party has
established injury-in-fact, causation, and redressability by
considering whether the alleged injury falls within the "zone
of interests" that the statute or constitutional provision at
issue was designed to protect; whether the complaint raises
concrete questions, rather than abstract ones that are
better suited to resolution by the legislative and executive
branches; and whether the plaintiff is asserting his own
legal rights and interests, as opposed to those of third
parties. See, e.g., Lujan, 504 U.S. at 561-62. The requisite
injury may be economic or non-economic in nature. United
States v. SCRAP, 412 U.S. 669, 686 (1973); Ass'n. of Data
Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 152
_________________________________________________________________
22. Article III, section 2 of the United States Constitution states, in
pertinent part, "The judicial Power shall extend to all Cases, in Law or
Equity, arising under this Constitution, the Laws of the United States ...
--to Controversies ... between Citizens of different States; ...." U.S.
Const., art. III, sec. 2
22
(1970). The causation element requires that the injury
"fairly can be traced to the challenged action." Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990). The redressability
prong of the standing test is meant to ensure that the facts
involved in a suit are conducive to judicial resolution and
are likely to be resolved by court action. Valley Forge, 454
U.S. at 472.
In dismissing the male appellants' sex discrimination
claims for lack of standing, the District Court reasoned
that, to the extent that discrimination had occurred in the
Times' mail room, it had been directed at females; thus, the
male workers had not suffered harm and could not assert
cognizable claims of sex discrimination. Anjelino, 1993 WL
170209 at *10-11. This conclusion was predicated upon the
court's understanding that, as a general matter, men do
not have standing to bring claims of sex discrimination
under Title VII. Id. at *10 (citing Spaulding v. University of
Washington, 740 F.2d 686, 709 (9th Cir.), cert. denied, 469
U.S. 1036 (1984)).
Relying on two Ninth Circuit cases, the court
acknowledged, however, that three exceptions to this rule
have been recognized. Anjelino, 1993 WL 170209 at *9-10
(citing Patee v. Pacific Northwest Bell Tel. Co., 803 F.2d
476, 478 (9th Cir. 1986); Spaulding, 740 F.2d at 709). The
court found that a cause of action may lie under Title VII
if male employees are subjected to discrimination"because
they are men." Patee, 803 F.2d at 478. Second, reasoning
by analogy from the Supreme Court's associational
standing precedent in the context of race discrimination,
the court concluded that male employees may sue under
Title VII if discrimination directed at women results in a
loss of interpersonal contacts or associational rights with
women. Anjelino, 1993 WL 170209 at *10 (citing Trafficante
v. Metropolitan Life Ins. Co., 409 U.S. 205, 209-10 (1972)).
Third, based on a ruling by a federal district court in
Indiana, the court concluded that a cause of action may lie
if sex-based discrimination results in pecuniary injury to
both male and female workers. Anjelino, 1993 WL 170209at *10 (citing Allen v. American Home Foods, Inc., 644 F.
Supp. 1553, 1557 (N.D. Ind. 1986)).
23
The District Court concluded that the injuries alleged by
the male appellants in this action did not fall within any of
these three categories. Therefore, the court held that the
male appellants lacked standing to assert claims under
Title VII and the NJLAD. Anjelino, 1993 WL 170209 at *10.
The court did not, however, analyze appellants' claim that
they suffered pecuniary injury because they were numbered
on the priority list among women, who were not hired due
to sex discrimination because hiring stopped when the
women's names were reached. The court simply concluded,
without further comment, that the alleged "multiple
discriminatory acts aimed against women directly" were
"without consequence to the male employees." Id.
On appeal, the Times agrees in part with the District
Court and argues that it is a well-settled proposition that
men do not have standing to sue for discrimination against
women. The Times rejects, however, the associational and
pecuniary theories of male standing to sue for sex
discrimination derived from Trafficante, 409 U.S. at 209-10,
and Allen, 644 F. Supp. at 1557, and contends that men
may sue for sex discrimination only if they experience
discrimination because they are men. The Times argues
that it was proper to dismiss the male appellants' claims
because these claims are based not on the male appellants'
sex but "on their membership in a group with low-priority
list placement that also included the female appellants and
others who are not appellants." The Times does not,
however, analyze whether the male appellants could state a
colorable claim of injury-in-fact if they were not hired
because they were listed among women who were not hired.
The appellants argue to the contrary that the male
appellants do have standing to sue based on discrimination
directed, in the first instance, against female co-workers,
because these males would not have been injured but for
the Times' discrimination against the women. When the
male appellants appeared at daily "shapes" for hiring, they
were "sandwiched among the women on the priority list"
and were not hired if the hiring stopped when the names of
women on the priority list were reached. Thus, they
suffered from the discrimination as well.
24
Appellants assert that their position on standing is
supported by our decision in Hackett v. McGuire Brothers
Inc., 445 F.2d 442 (3d Cir. 1971). We agree. In Hackett, the
plaintiff, because of his race, had been subjected to a
separate seniority and vacation schedule, intimidated,
harassed, and ultimately discharged. Id. at 444-45. The
District Court dismissed the plaintiff's Title VII claim for
lack of standing because he had become a pensioner after
being discharged by the defendant-company; thus, he was
no longer an "employee" within the meaning of Title VII. Id.
at 445. We reversed and emphasized our obligation to avoid
construing the standing doctrine in ways that undermine
Congress' objective in enacting Title VII.
The national public policy reflected . . . in Title VII . . .
may not be frustrated by the development of overly
technical judicial doctrines of standing . . .. If the
plaintiff is sufficiently aggrieved so that he claims
enough injury in fact to present a genuine case or
controversy in the Article III sense, then he should
have standing to sue in his own right and as a class
representative.
Id. at 446-47 (emphasis added).
In Hackett, we found Article III's case or controversy
requirements to have been satisfied by the plaintiff 's
allegations that demonstrated that he was a "person
aggrieved" as required by the statute; he was"aggrieved"
because he alleged that the employer had injured him in
violation of Title VII while he was employed there. Id. at
445. We concluded that at the pleading stage nothing
beyond a colorable allegation of injury is required of the
Title VII plaintiff. In Hackett, where the plaintiff claimed
pecuniary loss, it was clear that the plaintiff had met his
burden. Id. at 446 (citing Flast v. Cohen, 392 U.S. 83, 101
(1968)).
Our decision in Hackett was cited with approval in
Trafficante, 409 U.S. at 209, the seminal associational
standing case in the race discrimination context. In
Trafficante, the Supreme Court found that two tenants who
alleged a loss of the social and professional benefits of
living in an integrated community, due to landlords' alleged
25
discrimination against racial minorities, had standing to
sue under Title VIII of the Civil Rights Act of 1968, 42
U.S.C. S 3610(a).23 Id . at 212. Like our analysis in Hackett,
the Trafficante Court's analysis was textual. The Court
rejected an interpretation of Title VIII that would limit
persons entitled to sue to "objects of discriminatory housing
practices" because it found the definition of"person
aggrieved" contained in section 810(a) of Title VIII -- "(a)ny
person who claims to have been injured by a discriminatory
housing practice" -- to be "broad and inclusive." Id. at 208.
Thus, the Court concluded, "We can give vitality to [the Act]
only by a generous construction which gives standing to
sue to all in the same housing unit who are injured by
racial discrimination in the management of those facilities
within the coverage of the statute." Id. at 212.
Subsequently, in Novotny v. Great Am. Fed. Savings &
Loan Assn., 584 F.2d 1235 (3d Cir. 1978), rev'd on other
grounds, 442 U.S. 366 (1979), we affirmed our view that the
statutory language, "person claiming to be aggrieved,"
implied a Congressional intent to be liberal in allowing suits
that effectuate the purposes of anti-discrimination statutes.
In Novotny, we allowed a male plaintiff, who claimed to
have been discharged for failing to adhere to a company
policy of sex discrimination against women, to sue under
42 U.S.C. S 1985. Id. at 1240-45. Our holding in Novotny
was predicated upon the similarity in purpose and
semantic structure between Title VII's enforcement
provision and section 1985.24 Many courts have expressly
_________________________________________________________________
23. Title VIII is analogous to Title VII. Title VIII states, in pertinent
part,
"Any person who claims to have been injured by a discriminatory
housing practice or who believes that he will be irrevocably injured by a
discriminatory housing practice that is about to occur may file a
complaint with the Secretary [of Housing and Urban Development]." 42
U.S.C. S 3610(a).
24. Cf. id. at 1244, "Section 1985(3) provides for a cause of action in
any
instance where ``in furtherance of the object of' a proscribed conspiracy
an act is done ``whereby another is injured in his person or property.' By
its terms, the statute gives no hint of any requirement that the ``other'
must have any relationship to the ``person or class of persons' which the
conspiracy seeks to deprive of equal protection, privileges or
immunities," to Hackett, 445 F.2d at 445"[Section 706, 42 U.S.C.
S 2000e-5] permits ``a person claiming to be aggrieved' to file a charge
with the Commission. . . . A person claiming to be aggrieved may never
have been an employee of the defendant. . . . An aggrieved person
obviously is any person aggrieved by any of the forbidden practices."
26
followed our reasoning and/or precedent concerning the
significance of the language "person aggrieved" in
construing Title VII's standing requirements in the race
discrimination context.25
Our case law also addresses the causation element of
standing. In Rosen v. Public Service Elec. and Gas Co., 477
F.2d 90 (3d Cir. 1972), we considered causation in our
analysis of standing in a Title VII case. Rosen involved a
retiree who challenged his former company's policy of
linking an employee's sex with his or her required
retirement age for full pension benefits. The trial court had
found that when the plaintiff retired, he lost standing. Id. at
92-94. Our standing analysis was based on the plaintiff 's
status as an active employee at the time that the suit was
commenced, id. at 94, and the pecuniary nature of
plaintiff 's alleged injury. We observed that we had to
determine whether "there is a logical nexus between the
status asserted and the claim sought to be adjudicated." Id.
(citing Flast, 392 U.S. at 102). Because the plaintiff 's
_________________________________________________________________
25. See EEOC v. Mississippi College, 626 F.2d 477, 482 (5th Cir. 1980),
cert. denied, 453 U.S. 912 (1981) ("We agree with other circuits that have
held that the strong similarities between the language, design, and
purposes of Title VII and [Title VIII] require that the phrase ``a person
claiming to be aggrieved' in [Title VII] must be construed in the same
manner Trafficante construed the term"aggrieved person' in [Title
VIII].");
accord Clayton v. White Hall School District, 875 F.2d 676, 679-80 (8th
Cir. 1989) (holding that white woman who was not object of
discrimination, but who alleged injury because of race discrimination
against another, was a "person aggrieved" within the meaning of Title
VII); Stewart v. Hanson, 675 F.2d 846, 850 (7th Cir. 1982) (finding white
woman who had been deprived of interracial associations in workplace a
"person aggrieved" within meaning of Title VII); EEOC v. Bailey Co., 563
F.2d 439, 451-54 (6th Cir. 1977), cert. denied, 435 U.S. 915 (1978)
(holding that white female had standing under Title VII to challenge her
employee's alleged racial discrimination against blacks); Waters v.
Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976), cert. denied, 433 U.S.
915 (1977) (holding that white woman who sued under Title VII to enjoin
racially discriminatory employment practices was"aggrieved person"
within meaning of the statute); Gray v. Greyhound Lines, East, 545 F.2d
169, 175 (D.C. Cir. 1976) (holding that blacks who were not subjected to
racial discrimination had standing under Title VII to sue over
discrimination against other blacks).
27
alleged harm from the company's sex-based policies was
not theoretical but involved actual economic harm, we
concluded that he had been "subject to the discriminatory
provisions of the pension plans under consideration." He
would, therefore, be allowed to assert his claim. Id.
In Hospital Council v. City of Pittsburgh, 949 F.2d 83, 87
(3d Cir. 1991), we again discussed causation as a part of
our analysis of standing. Hospital Council involved alleged
threats by a city and county to discriminate against an
association of non-profit, tax-exempt hospitals in matters
relating to taxation, zoning, and public contracts if the
hospitals did not make "voluntary" payments in lieu of
taxes. 949 F.2d at 85. Although the complaint of the
hospitals had alleged past and imminent harm, id ., the
District Court dismissed the case for lack of standing on
the theory that the alleged harm was not "real injury" that
was "fairly traceable" to defendants' actions, but "purely
hypothetical." Id. at 86. We reversed, explaining that
The complaint alleged a classic form of qualitatively
concrete injury -- direct financial harm. The complaint
alleged that members had been subjected to and were
threatened with discrimination in the initiation of tax
exemption challenges, the handling of zoning matters,
and the awarding of public contracts. It is obvious that
discrimination of this type is likely to cause direct
financial harm to the victims.
Id. at 87. Accord Allen, 664 F. Supp. at 1553-57 (finding
that males who had been terminated after firm-wide
downsizing had standing to sue under Title VII, where they
argued that management had closed the facility in question
because it primarily employed women, whose jobs were
deemed expendable).
Because the male appellants here have pled specific facts
to demonstrate a concrete injury as well as a nexus
between the alleged injury and the sex-based
discrimination, even though that discrimination was aimed
in the first instance at others, we conclude that they have
established standing. Their allegations that sex
discrimination adversely affected their being hired as
extras, as well as their seniority on the priority list,
28
demonstrate actual injury. We hold that indirect victims of
sex-based discrimination have standing to assert claims
under Title VII if they allege colorable claims of injury-in-
fact that are fairly traceable to acts or omissions by
defendants that are unlawful under the statute. That the
injury at issue is characterized as indirect is immaterial, as
long as it is traceable to the defendant's unlawful acts or
omissions. SCRAP, 412 U.S. at 689 n.14; Hospital Council,
949 F.2d at 87.26
We will, therefore, reverse the District Court'sfinding
that the male appellants lack standing to assert their Title
VII claims.27
The foregoing analysis is equally applicable to the District
Court's dismissal for lack of standing of the male
appellants' NJLAD claims. This result is suggested by the
substantive law construing various aspects of the NJLAD
that has been developed by the New Jersey courts,
including the state law on standing. See, e.g., Craig v.
Suburban Cablevision, Inc., 660 A.2d 505, 507-09 (N.J.
1995) (holding that relatives and friends of person who
brought employment discrimination claim under NJLAD
had standing to bring retaliatory discharge claim against
their common employer); see also Erickson v. Marsh &
McLennan Co., Inc., 569 A.2d 793, 798-99 (N.J. 1990)
(explaining that New Jersey supreme court has adopted
methodology of proof used in Title VII cases for NJLAD
cases); Shaner v. Horizon Bancorp., 561 A.2d 1130, 1132
(N.J. 1989) (noting that LAD standards "have been
influenced markedly by experience derived from litigation
_________________________________________________________________
26. In fact, Hackett, 445 F.2d at 445-46, Rosen, 477 F.2d at 94, and
Hospital Council, 949 F.2d at 87, arguably stand for the proposition that,
where the alleged harm is pecuniary, a Title VII action should be
characterized as involving direct discrimination, as opposed to indirect
discrimination, even if the plaintiffs were not the objects of bias in the
first instance. Since other courts have termed such discrimination
"indirect" and we find the terminology irrelevant to our standing
analysis, however, we will not base our holding on this reading of our
precedent.
27. Because appellants limit their eligibility for standing to the
pecuniary
harm theory, we will not address the propriety of asserting, in the
employment context, an associational claim for standing.
29
under federal anti-discrimination statutes"). This result is
also suggested by the structural similarities between Title
VII and the New Jersey anti-discrimination law, as
discussed more fully infra in Section IV.B.
b. Failure to Exhaust
i. Sexual Harassment Claims
The District Court's dismissal of the female appellants'
hostile work environment sexual harassment claims was
based on its determination that their EEOC charges did not
state a complaint of sexual harassment. As the court
framed the issue, its concern with the charges related to
"whether appellants' EEOC complaint was worded
sufficiently to place the EEOC on notice of appellants'
hostile work environment claims." Anjelino, 1993 WL
170209 at *9. Because appellants referred in their initial
EEOC charges to an "abusive atmosphere" rather than to a
"hostile work environment," the District Court concluded
that the appellants' charges were too vague to give notice of
sexual harassment claims. Id. Based on its view that an
appreciable difference exists between the terms"abusive
atmosphere" and "hostile work environment," the District
Court dismissed the sexual harassment claims for failure to
exhaust administrative remedies. Id. The legal precedent
cited by the court was Howze v. Jones & Laughlin Steel
Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) and Ostapowicz
v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976). The
court construed these cases as supporting its view that the
phrases "abusive atmosphere" and "hostile work
environment" are sufficiently different to warrant the
dismissal of the appellants' sexual harassment claims.
Anjelino, 1993 WL 170209 at *9.
We do not agree, however, either with the interpretation
given by the District Court to Howze and Ostapowicz or
with the result at which the District Court arrived. Our
disagreement is best explained by starting with our
discussion in Ostapowicz of why a preliminary EEOC claim
is necessary.
Ostapowicz was a Title VII class action in which an
employer was found to have engaged in sex discrimination
30
in job classifications, resulting in women being laid-off from
work, while men with less seniority were either retained or
recalled to work at an earlier date than the women. 541
F.2d at 396-97. In Ostapowicz, we set out the procedures
for filing discrimination claims and the reasons for following
these procedures: When an "aggrieved person"files a claim
with the EEOC, the agency notifies the employer and
conducts an investigation. If the charge reasonably appears
to be true, the EEOC attempts conciliation. If conciliation
does not succeed, the EEOC notifies the aggrieved party of
his or her right to bring suit. The preliminary step of the
filing of the EEOC charge and the receipt of the right to sue
notification are "essential parts of the statutory plan,
designed to correct discrimination through administrative
conciliation and persuasion if possible, rather than by
formal court action." Id. at 398. Because the aim of the
statutory scheme is to resolve disputes by informal
conciliation, prior to litigation, suits in the district court are
limited to matters of which the EEOC has had notice and
a chance, if appropriate, to settle. Id. at 398.
In Ostapowicz, the defendants claimed on appeal that the
District Court had lacked jurisdiction to hear the case
because the right to sue letter, upon which the plaintiff
relied in filing suit, and the EEOC's initial report in the
case only concerned employees in the company's shipping
division. The plaintiff worked in a different division.
Subsequently, however, the plaintiff filed additional EEOC
charges that related to the division in which she worked. Id.
at 399. Several months after the additional charges were
filed, the plaintiff and certain of her co-workers requested
and received right to sue letters from the EEOC. In the suit
against the employer, the plaintiff and other members of
the class referred to both the initial and subsequent EEOC
charges.
On these facts, we rejected the defendant's argument that
the scope of the initial charges deprived the trial court of
jurisdiction to hear the case. We found that the additional
charges, which were filed during the pendency of the
administrative proceedings, "may fairly be considered
explanations of the original charge and growing out of it."
Id. In this way, we affirmed that the"parameters of a civil
31
action in the District Court are defined by the scope of the
EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination, including new acts
which occurred during the pendency of proceedings before
the Commission." Id. at 398-99 (citing Gamble v.
Birmingham Southern R.R. Co., 514 F.2d 678 (5th Cir.
1975); Oubichon v. North Am. Rockwell Corp., 482 F.2d 569(9th Cir. 1973)).
Because the EEOC had cognizance of the full scope of the
situation during its settlement efforts, the purpose of the
notification requirement had been served.
In Hicks v. ABT Assoc. Inc., 572 F.2d 960 (3d Cir. 1978),
we arrived at the same conclusion concerning the nature of
the filing requirement and its effect on the court's subject
matter jurisdiction in discrimination suits. In Hicks, the
plaintiff had filed claims of race discrimination and
retaliation with the EEOC. His subsequent law suit also
contained a claim for sex discrimination. The District Court
dismissed this claim on the ground that it was
jurisdictionally barred because Hicks had not filed a sex
discrimination charge with the EEOC. Hicks claimed that
he had attempted to amend his charge but that the EEOC
had refused to accept the amendment. In view of this
factual disparity, we reversed, holding that a court could
hear a claim of sex discrimination where it was unclear
whether the EEOC had improperly refused to amend
charges, and commenting that the "charges are most often
drafted by one who is not well versed in the art of legal
description. . . . [T]he scope of the original charge should be
liberally construed." Id. at 965. We pointed out that the
purpose of the filing requirement is to enable the EEOC to
investigate and, if cause is found, to attempt to use
informal means to reach a settlement of the dispute. Id. at
963. If the complaint is not well founded or if reconciliation
is not successful, a right to sue letter is issued to the
complainant.
Thus, the effect of the filing requirement is essentially
to permit the EEOC to use informal, non-judicial
means of reconciling the differences between the
charging party and an employer.
32
Id. (citing Ostapowicz).
Once again, in Howze, a Title VII suit in which the
plaintiff alleged that she had been denied a promotion due
to racial discrimination, we reversed the District Court's
determination that the plaintiff could not amend her
complaint to include a claim of retaliation. 750 F.2d at
1209-12. The defendant argued that the plaintiff should not
have been given leave to amend her complaint because no
evidence had been presented that the retaliation claim was
ever submitted to the EEOC. Id. at 1212. The court found,
however, that, as in Ostapowicz, the plaintiff's "new
retaliation claim may fairly be considered [an] explanation[ ]
of the original charge . . .." Id. (citations omitted) (relying on
Hicks to hold that EEOC investigation does not set outer
limits on the scope of the civil complaint.) Moreover, the
EEOC completed its investigation and determined that
there was no reasonable cause to believe that the employer
had discriminated against Howze before it issued its right
to sue letter.
In light of the precedent established by Ostapowicz,
Hicks, and Howze, we do not find, as the Times claims,
that these cases support its position that the appellants
failed to exhaust their administrative remedy on the sexual
harassment claim. We conclude to the contrary that
appellants' notification of their charges was sufficient
because the terms "abusive," "hostile,"environment," and
"atmosphere" have been used interchangeably to describe
sexual harassment. In particular, appellants support the
sufficiency of their charges with references to recent
Supreme Court and Third Circuit decisions concerning
sexual harassment. See, e.g., Meritor Savings Bank FSB v.
Vinson, 477 U.S. 57, 64, 66-67 (1986); Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21, 23 (1993); Knabe v. Boury
Corp., 114 F.3d 407, 410 (3d Cir. 1997); West v.
Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995);
Spain v. Gallegos, 26 F.3d 439, 445-47, 449 (3d Cir. 1994).
We agree with the appellants that the terms are
interchangeable. This interchangeability convinces us that
the harassment charge was within the scope of the
complaints before the EEOC. See Ostapowicz, 541 F.2d at
33
396-97; Howze, 750 F.2d at 1212; Hicks, 572 F.2d at 964-
65.28
The foregoing analysis also applies to the dismissal of the
female appellants' NJLAD sexual harassment claims for
failure to exhaust administrative remedies. This result is
suggested by the similarities between the procedural
requirements of Title VII and NJLAD, and the work-sharing
agreements between the two agencies, pursuant to which
the NJDCR deferred handling of the NJLAD claims to the
EEOC. See App. at 490-94 (letter from NJDCR identifying
charges investigated by the EEOC pursuant to work
sharing agreement); see also 29 C.F.R. SS 1601.13(a)(4)(ii),
1626.10(c) (describing work-sharing agreements between
_________________________________________________________________
28. Because we find the terms interchangeable, we will not go to consider
what further information, such as the original complaint with its section
entitled "Hostile Work Environment" or the appellants' January 5, 1993,
affidavits, the EEOC would have had the opportunity to consider if it had
completed its investigation, rather than issuing the right to sue letters
prior to its completion. The present case differs from Ostapowicz, Hicks,
and Howze in that the EEOC did not perform any in-depth investigation
and made no attempt at reconciliation. Moreover, the EEOC
acknowledged that it could not complete its investigation within the
statutory 180 days; for this reason, the EEOC stated that it would issue
the right to sue letters so that the appellants could proceed in court
without waiting for any further investigation by the EEOC. If, however,
the EEOC had pursued its investigation, it would have had before it not
only the original charges, alleging "abusive atmosphere" but also a copy
of the original district court complaint and the affidavits. In a case in
which the EEOC has conducted a complete investigation, it will have
presumptively prepared a report explaining the reasons for its
recommendation; completed a running case log indicating all actions
taken in the case, 1 EEOC Compliance Manual (BNA),S 22.16 & 22.17,
at 22:0012; id S 29, at 29:0001-04; and assembled a file containing the
investigator's work product, jurisdictional items, and relevant evidence.
Id. at S 28, at 28:0001-02. When we held in Ostapowicz and Howze that
the scope of a Title VII action in federal District Court is determined by
the initial charges filed with the EEOC and subsequent explanations or
outgrowths of these charges, we did so in cases in which such an
investigation of the charges had been conducted and records of the
EEOC's actions had been compiled. We will leave to another day the
question whether the EEOC should be presumed to have notification of
such subsequently filed allegations when it does not complete its
investigation prior to issuing the right to sue letter.
34
EEOC and state agencies); id. at S 1601.70 & 1601.71
(describing deferral process).
However, our conclusion as to the claims against the
Times does not apply to the claims against the Union. The
District Court's dismissal of all Title VII and NJLAD claims
brought by the appellants against the Union and appellee
McDonald is affirmed. We will affirm the dismissal of all
claims against the Union because the Union was not the
employer of the appellants; this is so even though some of
the supervisors and workers who are alleged to have
discriminated against the appellants may have been
members of the Union. While a union may be held liable
under Title VII, the record here does not demonstrate that
the Union itself instigated or actively supported the
discriminatory acts allegedly experienced by the appellants.
Therefore, the Union is not liable. See Carbon Fuel Co. v.
United Mine Workers, 444 U.S. 212, 217-18 (1979); Berger
v. Iron Workers, Local 201, 843 F.2d 1395, 1429-30 (D.C.
Cir. 1988); see Philadelphia Marine Trade Assoc. v. Local
291 Int'l. Longshoremen's Ass'n., 909 F.2d 754, 757 (3d
Cir. 1990). Rather, the Times was the party responsible for
assigning work to the appellants and ensuring that the
work place was not contaminated with sex- and race-based
discrimination and harassment.29
We will also affirm the dismissal of the Title VII and
NJLAD claims brought against the Union because the
appellants have not demonstrated that they exhausted the
Union's internal grievance procedures before filing
administrative charges with the EEOC and this civil action.30
We find that the appellants' failure to exhaust internal
administrative remedies negatively impacts their ability to
prove the Union liable under Title VII and the NJLAD. We
discuss more fully our reasoning regarding the appellants'
failure to exhaust the Union's internal grievance procedures
infra, in Section IV.A.3.
_________________________________________________________________
29. See App. at 105, 1103, 1136.
30. See, e.g., App. at 1682, 1767, 2387.
35
ii. Retaliation Claims
The District Court noted that the EEOC had not issued
right to sue letters to the appellants regarding their
retaliation claims and then dismissed these claims for
failure to exhaust administrative remedies. See Anjelino,
1993 WL 170209 at *10. We will reverse this dismissal of
the retaliation claim for failure to exhaust administrative
remedies on essentially the same basis as we reverse the
court's dismissal of the female appellants' hostile work
environment claim.
In the case at bar, the alleged retaliatory delistment
occurred after the appellants initiallyfiled administrative
charges in May and June of 1992, and after they originally
filed a complaint in June of 1992. Thus, it would have been
impossible for the appellants to have included the
retaliatory delistment among their initial charges and
original complaint.
While the record does not show that the appellants
requested right to sue letters from the EEOC prior to filing
their Amended Complaint, for the reasons stated supra, we
will not penalize the appellants for the EEOC's failure to
follow up on the retaliatory discharge charges, or for their
attorneys' failure to request right to sue letters, where the
appellants were entitled to such letters as a matter of right,
29 C.F.R. S 1601.28(a)(2), and where letters had been
received with respect to the initial charges. Under these
circumstances, and in light of the numerous allegations of
discrimination contained in the record, we will reverse this
dismissal for failure to exhaust. See Zipes, 455 U.S. at 392-
98; Robinson, 107 F.3d at 1021; Hornsby , 787 F.2d at 89.
We find support for this conclusion in Ostapowicz, 541
F.2d at 398-99 (the "parameters of a civil action in the
District Court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out
of the charges of discrimination, including new acts which
occurred during the pendency of proceedings before the
Commission"), and Howze, 750 F.2d at 1212 (plaintiff's
"new retaliation claim may fairly be considered[an]
explanation[ ] of the original charge"). Moreover, we have
held that the failure to obtain a right-to-sue letter, in
particular a second one for a retaliation claim, is curable at
36
any point during the pendency of the action. Gooding v.
Warner-Lambert Co., 744 F.2d 354, 357-59 (3d Cir. 1984)
(eschewing "highly technical pleading rules, which only
serve to trap the unwary practitioner," in favor of notice
pleading; reversing dismissal of Title VII action where
second right-to-sue letter issued after complaintfiled);
accord Williams v. Washington Metro. Area Transit Auth.,
721 F.2d 1412, 1418 n. 12 (D.C. Cir. 1983); Fouche v.
Jekyll Island-State Park Auth., 713 F.2d 1518, 1525 (11th
Cir. 1983). Under these circumstances, we find that the
appellants acted with due diligence.31
c. Timeliness
i. Sex and Race Discrimination and Retaliation
Claims under Title VII
Of the sex and race discrimination claims that survived
dismissal on other grounds, the Court limited those
brought under NJLAD to events occurring after June 1990
and those brought under Title VII to events occurring after
July 1991. This dismissal for lack of timeliness was based
on the court's determination that, except for their
delistment, the appellants had not alleged a single
objectionable policy or practice that occurred within the
limitations period. Anjelino, 1993 WL 170209 at *7. The
court reasoned that the appellants would not be able to
prove by a preponderance of the evidence that their claims
were not stale or that their allegations met the standards
for applying the continuing violations theory of timeliness.
Id. at *6-8.
However, as we discuss supra in Part III, the District
Court reviewed these claims under Rule 12(b)(1) rather
than under Rule 12 (b)(6) or Rule 56. In doing so, the court
failed to consider the significance of the fact that the
appellants claimed that certain alleged acts of
_________________________________________________________________
31. The Amended Complaint also added three new plaintiffs, Maureen
Dolphin, Jacqueline Fogarty, and Ronald Plakis, who had not filed
charges of any kind with the EEOC. The appellants have not mentioned
the dismissal of these three plaintiffs in their briefs; we do not,
therefore,
address this issue.
37
discrimination took place within the limitations period. The
Times disputed these claims of timeliness before the
District Court and continues to do so on appeal. Thus,
whether any of the claims were timely is a question of
disputed material fact. See, e.g., Hicks, 572 F.2d at 963-66.
Rather than weighing the credibility of the parties' positions
on this disputed issue, the District Court should under
Rule 12 (b)(6) and Rule 56 have left such considerations to
a jury. See Williams v. Borough of West Chester , 891 F.2d
458, 460 (3d Cir. 1989); Anderson, 477 U.S. at 248.
ii. Sex and Race Discrimination and Retaliation
Claims under NJLAD
We also find that the District Court erred in dismissing
the appellants' NJLAD claims for lack of timeliness. Our
decision regarding the timeliness of the appellants' NJLAD
claims is controlled by Montells v. Haynes, 627 A.2d 654(N.J. 1993). In Montells, the Supreme Court of New Jersey
held that a two year statute of limitations applies to all
NJLAD claims. Id. at 659-61. Prior to Montells, it had not
been clear whether NJLAD claims were subject to a six year
or a two year statute of limitations. Id. at 661. Whereas
New Jersey courts generally had applied the shorter term,
Leese v. Doe, 440 A.2d 1166, 1168 (N.J. 1981), the federal
courts tended to apply the longer limitations period. See
White v. Johnson & Johnson Prod., Inc., 712 F. Supp. 33(D.N.J. 1989) (applying six year limitations period); United
States v. Bd. of Educ., 798 F. Supp. 1093, 1095 (D.N.J.
1992) (same).
Although the Montells court found that the two year
statute of limitations would apply uniformly to all NJLAD
claims, the court held that its decision would only apply
prospectively. 627 A.2d at 661-62. Thus, all claims filed
prior to July 23, 1993, the date that the opinion was
issued, were subject to a six year limitations period. Under
Montells, the appellants' NJLAD claims, which were filed in
August of 1992, are subject to the six year statute. Thus,
these claims are not time-barred.
38
2. Section 1981 Sex and Race Discrimination and
Retaliation Claims
a. Sex Discrimination and Retaliation Claims
The section 1981 claims brought by Hispanic women for
alleged sex discrimination and/or harassment were
dismissed by the District Court on ground that gender-
related claims are not cognizable under this statute.
Anjelino, 1993 WL 170209 at *11. We will affirm the District
Court's dismissal of the gender related claims on this basis.
Because the statute, on its face, is limited to issues of
racial discrimination in the making and enforcing of
contracts,32 courts have concluded that sex-based claims
are not cognizable under 42 U.S.C. S 1981. See, e.g., Bobo
v. ITT, Continental Baking Co., 662 F.2d 340, 343 (5th Cir.
1981) ("The drafters of [section] 1981 had no intention to
disturb public or private authority to discriminate against
women."); Montano v. Amstar Corp., 502 F. Supp. 295, 296-
97 (E.D. Pa. 1980) (denying motion by African-American
woman to amend her complaint to include sexual
harassment claim); see also Runyon v. McCrary , 427 U.S.
160, 167 (1976) (dictum).
b. Race Discrimination and Retaliation Claims
The District Court limited the Hispanic appellants'
section 1981 race discrimination claims to events occurring
after June 1990. Anjelino, 1993 WL 170209 at *11. The
court reasoned that the claims should be so limited
because the appellants were unable to demonstrate
continuing violations. Id.
Based on our reasoning concerning the timeliness of the
NJLAD claims, we will reverse the dismissal of the section
1981 racial discrimination and retaliation claims. We do so
because in cases decided prior to Wilson v. Garcia, 471 U.S.
261 (1985), the federal courts, for purposes of establishing
a limitations period, analogized section 1981 claims to
_________________________________________________________________
32. 42 U.S.C. S 1981 provides, in pertinent part, that "[a]ll persons
within the jurisdiction of the United States shall have the same right in
every State ... to make and enforce contracts ... as is enjoyed by white
citizens...." 42 U.S.C. S 1981.
39
claims under state limitations periods, either personal
injury or breach of contract claims. See, e.g., Runyon, 427
U.S. at 180-82 (affirming application of state two year
personal injury statute of limitations to section 1981
claims). This borrowing was necessary because section
1981 does not contain a limitations period. See Johnson v.
Ry. Express Agency, 421 U.S. 454, 464-65 (1975). As we
discuss above, prior to Montells, NJLAD claims were
subjected to the same limitations analysis. See , e.g., White,
712 F. Supp. at 34-35 (D.N.J. 1989). Furthermore, when an
action contained both section 1981 and NJLAD claims, the
courts presumed that the same statute of limitations would
apply. Id. Prior to Montells, the federal courts in New Jersey
would apply a two or a six year statute of limitations to
section 1981 and NJLAD claims, based on whether a court
analogized a claim as one for personal injury or contract.
As explained above, however, the federal courts no longer
have to guess which statute of limitations applies to NJLAD
claims. In Montells, the New Jersey Supreme Court decided
that a two year statute of limitations should apply to all
NJLAD claims. 627 A.2d at 659. The Montells court
determined, however, that the two year limitations period
would not apply to cases filed prior to the date of that
decision.
We adopt the reasoning of the Montells court and find
that the appellants, who filed the instant section 1981
action prior to the decision in Montells and who may
reasonably have relied on cases applying the longer period
to both section 1981 and NJLAD claims, are entitled to a
six year limitations period. Accord Al-Khazraji v. St. Francis
College, 784 F.2d 505, 511-14 (3d Cir. 1986), aff'd, 481
U.S. 604, 607-10 (1987) (refusing to apply Pennsylvania
personal injury statute of limitations retroactively when
there was no reliable holding which statute of limitations
applied when appellant's section 1981 claims arose); White,
712 F. Supp. at 34-35 (applying six year statute of
limitations to NJLAD claims and section 1981 claims to
avoid injustice of applying new limitations period
occasioned by change in substantive law retroactively).
The foregoing analysis does not apply to the Union
defendants for the reasons cited in the Section IV.A.1.b. For
40
the reasons stated there, we will affirm the dismissal the
Title VII and NJLAD claims against the Union.
3. LMRA and LMRDA Claims
The Court dismissed the appellants' claims against the
Union, McDonald, and the Times under the LMRA on
grounds of timeliness, Anjelino, 1993 WL 170209 at *12-13,
and because the Court determined that the appellants had
not exhausted the Union's internal remedies prior to filing
suit. Id. at *13. Likewise, appellants' claims under Title I of
the LMRDA were dismissed for failure to exhaust and lack
of timeliness.
We will affirm the dismissal of these claims because the
appellants have not demonstrated that they exhausted the
Union's internal grievance procedures prior to filing charges
against the Union and the Times. In particular, the District
Court's dismissal of the LMRA and LMRDA claims was
based on its finding that the appellants' complaints to the
Union regarding their alleged mistreatment by Times'
personnel were being presented to the Baar Committee at
the same time that they were before the District Court. See
Anjelino, 1993 WL 170209 at *13-14. Under these
circumstances, we find that dismissal of the LMRA claims
was appropriate. See Angst v. Mack Trucks, Inc., 969 F.2d
1530, 1538 (3d Cir. 1992) (holding that union members
were required to exhaust grievance and arbitration
procedures contained in CBA prior to filing suit under
LMRA); see also Clayton v. Int'l. Auto. Workers, 451 U.S.
679, 692 (1981).
For the same reason, we will affirm the dismissal of the
LMRDA claims. See Pawlark v. Greerwalt, 628 F.2d 826,
830-31 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981)
(stating that internal exhaustion requirement is not
absolute and reversing dismissal of LMRDA on record of
particular case, but noting that suits by union members
who cannot demonstrate a "valid reason" for failing to
exhaust internal procedures usually will be dismissed by
trial courts).
B. Matters Dismissed on Summary Judgment
In its Orders of August 22, 1996, and March 2, 1997, the
District Court dismissed, inter alia, the remaining Title VII
41
and NJLAD sex and race discrimination and retaliation
claims of the non-Hispanic and Hispanic appellants,
respectively, on summary judgment grounds. Thus, the
court determined that there were no genuine issues of
disputed material fact that precluded dismissal of these
claims prior to trial. This ruling can no longer stand,
however, because our rulings on failure to exhaust and lack
of standing and our modification of the limitations period
have reinstated as material many factual issues that were
not considered by the District Court in its consideration of
the motion for summary judgment. Because of the revival of
disputed factual issues, summary judgment may no longer
be appropriate.
On remand, the District Court must review these issues
in light of Rule 12(b)(6) and Rule 56 standards. We caution
the District Court that, in doing so, it may need to
reconsider its prior ruling that the Baar Award is sufficient
in and of itself to constitute a "legitimate,
nondiscriminatory reason for rejection." We add this note of
caution because of the expansion of the relevant time
period to be considered and the impact that further factual
development may have on this conclusion by the District
Court. We point in particular to the findings of the 1988
Adelman Award concerning the standards of enforcement
over the years of the Baar Award. See App. at 124-137. The
issue of whether the Baar Award has been enforced and/or
strictly complied with may affect the disparate treatment
and the disparate impact claims.
C. Collateral Issues
1. Discovery
The District Court's denial of the appellants' motion for
further discovery was based on representations made by
appellants' counsel to a magistrate judge in an affidavit
opposing a motion to dismiss the case. In the affidavit,
counsel stated that "[p]laintiffs are prepared to go to trial at
this time, and do not require further discovery." App. at
688. The District Court found this declaration to be a
"tactical decision, made in the particular context [of a
motion to dismiss], to forgo the obvious advantages of
discovery in order to move the litigation forward . . .." App.
42
at 25. Applying the doctrine of judicial estoppel, which the
court characterized as designed "to prevent litigants from
engaging in precisely this kind of ``tactical' decision-
making," the court refused the appellants' request to
overturn the magistrate's order denying them further
discovery.
The appellants argue on appeal that the District Court
abused its discretion in affirming the order denying them
discovery. They claim that counsel's statement that no
further discovery was needed was based on the assumption
that no party would be granted further discovery; they
assert that it was not inconsistent with prior
representations by counsel or made in bad faith. For this
reason, they urge that the court should not have affirmed
the order on grounds of judicial estoppel. The appellants
argue that, by allowing the appellees to proceed with
discovery while denying the same to them, the District
Court "profoundly changed the balance between the
parties."
We find, however, that the District Court did not abuse
its discretion by holding counsel to the representation that
no further discovery was needed. On the basis of the record
before us, we find no cause for disturbing the court's
application of judicial estoppel to "preserve the integrity of
the courts by preventing litigants from ``playing fast and
loose with the courts.' " Anjelino, No. 92-2582 (Jan. 29,
1996) at 3 (quoting Scarano v. Central R.R. Co. of New
Jersey, 203 F.2d 510, 513 (3d Cir. 1953)); accord McNemar
v. Disney Store, Inc., 91 F.3d 610, 616-17 (3d Cir. 1996);
Lewandowski v. Nat'l R.R. Passenger Corp., 882 F.2d 815,
819 (3d Cir. 1989). The District Court's order denying
discovery to appellants' counsel is affirmed.
2. Sanctions
Although a trial court has considerable discretion in
imposing sanctions, it is settled law that an attorney must
have notice and an opportunity to be heard on the
possibility of being sanctioned, consistent with the
mandates of the due process clause of the Constitution.
Martin v. Brown, 63 F.3d 1252, 1262-64 (3d Cir. 1995). The
requisite notice must be "particularized" so that a party is
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aware of the "particular factors that he must address if he
is to avoid sanctions." Jones v. Pittsburgh Nat'l Corp., 899
F.2d 1350, 1357 (3d Cir. 1990). We have vacated orders
imposing sanctions where we found that notice was not
sufficiently particularized. For instance, we will consider it
an abuse of a district court's discretion if it does not made
it clear that an attorney might be sanctioned pursuant to
28 U.S.C. S 1927,33 which requires a finding of bad faith for
the imposition of sanctions, see Hackman v. Valley Fair,
932 F.2d 239, 241-42 (3d Cir. 1991), as distinguished from
Rule 11, Fed.R. Civ.P., which does not require such a
finding, see Fellheimer, 57 F.3d at 1225. Accord Martin, 63
F.3d at 1262-64.
Moreover, sanctions relating to abuse of the discovery
process must reflect reasonable costs incurred as a result
of an attorney's misconduct. See Martin, 63 F.3d at 1262-
64. In order to facilitate our review of orders imposing
sanctions on this ground, we therefore require that a
district court make explicit the basis for its imposition of
discovery related sanctions. It is impossible for us to
determine whether a court has exercised sound discretion
in imposing sanctions if the record does not provide a
justification for the order. Id. at 1264.
After reviewing these prerequisites for the imposition of
sanctions, we find that the District Court's order imposing
sanctions upon appellants' counsel must be vacated.
Although the court's order to show cause regarding the
possibility of sanctions states the court's view that
appellants' motion to reconsider was "an improper
rehashing of issues already decided," the order to show
cause did not give notice as to the legal basis for the
possible sanctions. App. at 30. For instance, it did not refer
to 28 U.S.C. S 1927. The District Court's failure to give
particularized notice to counsel was inconsistent with our
precedent. See Martin, 63 F.3d at 1264; Jones, 899 F.2d at
1358.
_________________________________________________________________
33. This statute states, in pertinent part, that "any attorney ... who so
multiplies the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess costs,
expenses, and attorney's fees reasonably incurred because of such
conduct." 28 U.S.C. S 1927.
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Moreover, while the order imposing sanctions did set
forth the statutory basis for the court's action, the $5,000
penalty imposed by the court was not based upon an
assessment of reasonable costs of counsel's misconduct.
This, too, is grounds for our finding that the Court abused
its discretion in imposing sanctions upon appellants'
counsel. Martin, 63 F.3d at 1262-64.
V. Conclusion
For the foregoing reasons, we will reverse in part and
affirm in part the District Court's orders dismissing the
Amended Complaint, and we will remand this case for
further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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