1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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 sexbased 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 longstanding 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"leapfrogging" 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 170209 

at *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-infact 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 genderrelated 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' decisionmaking," 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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