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. e du/thir dc ir c uit_1999/315Filed 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 Carranz a, 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 Dist rict Court Judge for the District of Delaware, sitting by designation.

2Josee 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 employe es of the New York Times Company (the "Times") brought an employment discrimination action against the Times; its publisher, Arthur O. Sulzberger, Jr.; New York Mail ers'

3Union No. 6; and George McDonald, the president of the

Union. The appellants were members of the Union whi le employed by the Times. All the appellants, female a nd male, Hispanic and non-Hispanic, alleged discrimination b y the Times on the basis of sex. In particular, they alle ged sexbased discrimination with respect to compensation a nd assignment of work and also retaliation; the female appellants also alleged sexual harassment. In addit ion, the Hispanic appellants alleged discrimination and hara ssment because of race, color, and national origin.2

In response to the Times' pre-trial motions, the Di strict Court dismissed the Amended Complaint in its entire ty. The court reached the merits of the claims in only a few

instances. Most counts were dismissed for lack of s ubject matter jurisdiction due to the appellants' failure to exhaust

administrative remedies or to their lateness infili ng charges. The male appellants' sex discrimination cl aims were dismissed for lack of standing to sue under Ti tle VII and NJLAD. The District Court granted summary judgm ent for appellees on the remaining counts.

We conclude that the Amended Complaint should not have been dismissed in its entirety. With respect t o the first issue before us, the standing of the male appellant s to sue for sex discrimination, we will reverse. We do so b ased on

our determination that "indirect" victims of discri mination 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 discrimina tion 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 certa in evidence in the record that we find probative of discriminat ion. We

will reverse the dismissal of these claims. We will , however,

affirm the dismissal of the claims of sex discrimin ation and

sex-based retaliation under section 1981 because se ction

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2. The appellants in this action include nineteen f emales and nine males; four are Hispanic. App. at 347. The Hispanic appell ants' allegations of discrimination on the basis of race, color, or nati onal origin will be referred to as "race discrimination," except where our analysis requires a distinction to be drawn among these categories.

41981 does not reach these forms of discrimination. We also

will affirm the dismissal of the Labor Management R elations Act of 1947 ("LMRA") and the Labor Management Repor ting and Disclosure Act of 1959 ("LMRDA") claims against the Union and the Times because the appellants failed t o exhaust the Union's internal grievance procedures. In addition, we will affirm the dismissal of the discr imination and retaliation claims brought against the Union be cause the Union was not the appellants' employer and the appellants failed to exhaust the Union's grievance procedures. Finally, we will affirm the District Co urt's decision to deny the appellants' further discovery, but we will reverse the sanctioning of appellants' counsel for requesting reconsideration of the discovery decisio n.

I. Factual Background

The genesis of this case is a controversy between t he New York Times and its union shop, on the one hand, and female and Hispanic workers on the other. Before th e late 1970s, the Times' mail room employees had been almo st exclusively non-minority male. Even at present, wom en constitute only a fraction of the Times' mailers. I ndeed, the Union and the Times do not dispute the appellants' claim that the Union admitted them reluctantly, under ord er of a

review board.

This dispute is a part of a lengthy history of comp etition among laborers for jobs in the New York metropolita n area newspaper industry. In particular, there has been a longstanding disagreement between labor and management concerning the use of substitute workers to assembl e the newspapers. The success or failure of collective ba rgaining

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 N ew 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 managem ent and labor, an arbitration board, the Baar Commissio n, developed new practices for hiring and promotion of mailers

5at various New York City newspapers. These practice s were

set forth in the "Baar Award." The Baar Award was designed to ensure the orderly hiring of extra work ers when there was not sufficient regular staff to perform n ecessary daily tasks.

In 1984, under the terms of the collective bargaini ng agreement (the "CBA") and the Baar Award, 3 the Tim es and the Union, along with other area publishers, agreed to a mail room staffing scheme. Under this plan, the mai l room was to be staffed by two groups of workers: "situat ion holders," who were scheduled to work five shifts pe r week, and "extras," who were substitute workers. Extras w ere hired according to seniority at daily "shapes." Man agement determined extras' seniority on the basis of an ann ual

review of their work records. This review was condu cted 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 c ategories, "A" through "E." When first hired, extras were placed i nto category "E." Extras might advance from category "E " to "D" on the priority list by working at least fifteen sh ifts per quarter of each year. Although extras might work sh ifts for any publisher who was a party to the CBA, extras wo uld not appear simultaneously on more than one employer 's hiring list. Moreover, continuous employment with a single publisher increased the likelihood of advancement o n the priority list. Extras, who transferred from one pub lisher 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 cate gory of the new employer. In this way, extras who expressed int erest and were successful in obtaining employment at dail y shapes -- preferably continuous and regular employm ent with a single publisher -- could advance along the priority list from category "E" to categories "D" and "A-B." 4

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3. This CBA became effective on March 31, 1984, and , as a result of a series of modifications and extensions, runs throug h March 30, 2000.

4. The Baar Award also provided for a "C" list. Mai lers on the "C" list were not hired according to seniority, however, but "according to the

needs of the office."

6If the annual review of an extra's work record show ed

that he or she had worked at least 180 shifts durin g the preceding year,5 the individual would be placed int o category "A" or "B" on the priority list. If, howev er, an extra failed to meet the requirements for advancement to "A" or "B" for two out of three successive years, that ind ividual was demoted, or "delisted." Delisted mailers could reapply to work as mailers for publishers that were signato ries to the CBA. Their status on a publisher's list would n ot, however, reflect credit for shifts worked prior to delistment. A four-person board, comprised of two representativ es each from the Times and the Union, reviewed complaints a rising

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 Discrimin ation

The appellants have been employed in the Times' mai l room as extras. As such, they were subject to the t erms of the CBA and the Baar Award. During the mid-1980s, t he appellants were placed on the "D" priority list. Al though the priority list system allegedly is a facially neutra l 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-bas ed discrimination on a daily basis, which greatly limi ted their ability to advance on the list. The alleged discrim ination occurred with respect to compensation, terms, and o ther conditions of employment; it included sexual and ra cial harassment and retaliation for the filing of the in stant lawsuit and charges before the EEOC. The allegation s of the Amended Complaint, recounted in the light most favo rable to the appellants, are outlined below.

1. Compensation/Assignment of Work

During their employment by the Times, appellants al lege 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 compar able to

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5. The requirement was 160 shifts prior to 1962.

7those of males and/or non-Hispanic white workers. D uring

the period from the mid-1980s through and beyond Au gust of 1992, the appellants claim to have experienced discrimination in compensation and work assignment prospects. They allege that policies regarding seni ority and hiring from the priority list repeatedly were manip ulated in ways that limited the employment opportunities of f emale and Hispanic workers. They claim, for instance, tha t hiring for work shifts commonly stopped just before the na mes of women on the priority list were reached. The exclus ion 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 prior ity list, were hired for work shifts instead of more experien ced women. Appellants claim that this type of "leap-fro gging" occurred repeatedly over time, including on the fol lowing 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 wer e placed ahead of female mailers on the Times' priori ty list; and October of 1990, when sixteen Daily News situat ion holders who were on strike from their paper were pl aced ahead of Times' mailers, including the appellants, causing the appellants to be unemployed for three weeks. Appellants contend that on these occasions and at o ther times men, who had or should have had less seniorit y 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 an d conditions under which men, in particular non-Hispa nic

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6. Appellants allege that many of the Daily News wo rkers 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' r esponse to this claim.

8men, worked. Appellants charge that the Times

discriminated against them when assigning jobs. App ellants claim that women more often worked in unpleasant pa rts of the work place and performed the least desirable wo rk. For example, rather than working on the presses or inse rt machines, women often worked in the hand insert sec tion, or the "rock pile," an assignment that required con stant standing, disposal of waste, and restricted movemen t. Women also routinely were assigned to perform objectionable tasks such as serving coffee to manag ement and other personnel; men, including men with less seniority than women, were not asked to perform suc h chores. Women frequently were assigned to perform t asks that required them to work under close scrutiny of supervisors, while men were assigned jobs that allo wed more autonomy.

Appellants further charge that they were discrimina ted against in their benefits and compensation. Appella nts also allege that women were required to clean up at the end of their shifts, whereas most men were not, and that w omen were consistently treated differently and worse tha n male employees with respect to work breaks. Women's bath room breaks were counted as their coffee breaks, while m en were permitted to take both coffee and bathroom breaks. Women were required to complete an entire work shift in o rder to be paid for the full shift, whereas men were paid f or working the full shift even though they did not com plete it. Women were not given "bonus" jobs, as were male wor kers. 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. A lso they assert that women were denied medical and othe r benefits.

Finally, the appellants make specific allegations concerning the Union. They claim that the matricula tion of women into the Union was improperly delayed for arb itrary and discriminatory reasons. Even after they were

9matriculated, the appellants allege that the leader ship 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, includ ing complaints that the terms of the Baar Award often w ere 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 origin al and amended complaints, under a heading entitled "hosti le work environment," the appellants alleged that crud e language and behavior were directed at the female appellants by male co-workers. Appellants further s tated that if they complained about such treatment, they were confronted with "ridicule" or "hostility." In addit ion, they alleged that a hostile work environment was created by "photographs of nude women and pornographic magazin es [which] were displayed and directed at women."9

The allegations regarding sexual harassment were described most explicitly in depositions and affida vits that appellants proffered in response to appellees' moti ons to dismiss their claims and/or for summary judgment. I n these documents, appellants claimed that their work place was an environment in which sexually harassing lang uage and acts routinely were inflicted upon appellants b y male employees of the Times and/or Union members. Appell ants claimed that neither supervisory personnel at the T imes nor Union officials proscribed such harassment, punishe d its perpetrators, or otherwise discouraged it. In parti cular, appellants alleged that the Times and the Union wer e aware of and allowed male employees to engage in the foll owing conduct: the display of pictures of nude or lingeri e-clad women throughout the work place, but especially in female

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8. See, e.g., App. at 162.

9. App. at 350.

10workers' line of vision; the throwing and display o f 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 fema le workers; and the hiring of a female stripper, who p erformed 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 alleg ed 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 tw o female appellants asked a foreman if they could use the re stroom, they allegedly were told to "piss under the machine ." During the Christmas season in 1991, Times' foreman Upton allegedly stated to appellants Nancy J. Simat os, Hilary Mendelson, and Lillian Sullivan, "If you wan t to be here to do a man's work, then work like a man . . . ." One female appellant who needed assistance with her wor k from a male worker was told repeatedly to "get Jesus to help her," rather than him. Other male employees are all eged to have made the following remarks to various appellan ts: "[Management] never should have let women work here [the mailroom]"; "we don't want women here"; "they shoul d 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 ou t of our shop". Male employees also allegedly referred to wo men as the "bottom of the barrel."11

Moreover, appellants claim that male employees of t he Times and/or Union members frequently made offensiv e comments about women's anatomy. Foreman Larry Levinson allegedly made comments to appellant Sims

"about the size of women's breasts" and "women's

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10. See, e.g., App. at 1688, 1691, 1736-40, 1756, 1 795-96, 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.

11buttocks." Another employee yelled to an appellant who had

been asked her priority number during a hiring sess ion, "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 a round to the guys" and comment "moo, moo ... do you want some milk?" Ackerman repeatedly made this taunt concerni ng Trause's breasts over the course of the work day, w ith 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 belo ng to begin with." Appellant Anjelino was told that she " looked

like a man."12

In addition to these comments and to the discrimina tory assignment of work, the Hispanic appellants claim t hat they were subjected to racially harassing statement s. 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 alleged ly were told: "[S]peak English, no Spanish. ... We're in Am erica," or "Habla Ingles?" Moreover, they claim to have been constantly taunted with comments like, "You guys ma ke good rice and beans, right?"12

As a result of such verbal and sexual harassment, t he appellants were often emotionally distraught at wor k, many times, to the point of tears.13

3. Retaliation

The appellants assert that this conduct increased a fter they complained about their mistreatment. For examp le, 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 post ed on two employee bulletin boards, with derogatory phrases w ritten across the letter such as: "Dykes unite," "Eat Shit ," "Ass

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12. See, e.g., App. at 1571, 1798-1800, 2104-05, 23 14, 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.

12Holes," "Burger King is hiring," "Scabs," and "Anti -Union."

One of the bulletin boards on which the defaced let ter was placed was enclosed in glass and locked; only Times ' supervisors had keys to it.14

The retaliation became harsher after the administra tive complaints and the suit were filed in May and June of 1992. For example, on June 25, 1992, just after sui t was filed, the president of the Union allegedly read of f 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 discriminate d against now, wait until we get through with you." Moreover, appellants claim that appellees accelerated the pra ctice 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 alt hough other mailers who had not complied with the terms o f the Baar Award were not. Appellants assert that the del istment was improper under the terms of the Baar Award. How ever, rather than helping the appellants, the Union delay ed their appeal of the delistments.

Even after the delistment of the appellants, the Ti mes and the Union allegedly continued to retaliate agai nst them for complaining about their mistreatment. Although many jobs were open, the Times usually hired new personn el, including non-Union workers, rather than the delist ed appellants. When appellants were finally rehired, t hey were assigned to the worst available jobs. Co-workers co ntinued to harass them verbally; some appellants also claim to have been physically threatened by co-workers. When appe llants 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 Tim es argues that at all relevant times it complied with the Baar

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14. See App. at 1110-11, 1114, 1126, 1142-43.

15. App. at 1764-78, 1790-93, 1803-08, 2097-2101, 2 111-12, 2345,

2350-55.

13Award's policies on delistment. The Times asserts, for

instance, that the appellants' claims that extras w ere not hired according to seniority is wrong, that "most p laintiffs freely admitted" as much, and that the appellants' "generally conceded" that the least desirable jobs were assigned to those with the least priority. The Time s also claims that the appellants' complaint regarding the "leapfrogging" of 275 Daily News and Post workers over t hem in 1987 was settled on appeal by an arbitrator, who ru led against the appellants.16 Moreover, the Times and U nion argue that contrary to the appellants' contentions, all

extras who failed to meet the Baar Award criteria f or 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 mee t neutral criteria for continued employment as extras. The Un ion also submits that five of the delisted appellants were r einstated 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 emplo yees" and other situations "amounted to no more than slight annoyances" based on the appellants' "subjective be liefs." The Times and the Union argue that the appellants n ever complained about these incidents, either to the Tim es management or through the Union's grievance procedu res.

The Times disputes the appellants' claims that "inappropriate pictures of undressed or partially u ndressed women" were posted in the workplace. In addition, t he Times notes that none of the appellants allege that such pictures were posted after mail room operations mov ed to a new plant. The Times argues that, due to the date o f the move, these claims are untimely. In addition, the T imes notes that the appellants never complained about th ese postings, either to the Times management or through the Union's grievance procedures.

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16. Citing Anjelino v. New York Times, 1993 WL 1702 09 at *5-6 (D.N.J. May 14, 1993).

14Regarding the sexually and racially harassing langu age,

the Times contends that these claims are not suffic iently specific because the appellants are not "able to at tach a date to them." In addition, the Times claims that"o nly coworkers" made the comments. Finally, the Times no tes 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 t he same time, the Times asserts that "the few plaintiffs wh o attempted to give any examples of alleged breaches of the [CBA] or the Union's duty of fair representation re lated nothing but subjective beliefs and/or incidents tha t 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 appellantsfil ed charges of sex and/or race, color, and national ori gin

discrimination and retaliation with the EEOC and th e New Jersey Division of Civil Rights ("NJDCR").

The charges of the female appellants alleged that 1 ) they were "subjected to terms and conditions of employme nt less favorable than that accorded of [sic] male mailers, including but not limited to being denied equal numbers of wo rk shifts"; 2) that they "complained about the discrim inatory treatment accorded them"; 3) that "[s]uch discrimin atory terms and conditions of employment was [sic] even m ore intensified and continued throughout [their] tenure "; 4) that they were "discriminated against with respect to wa ges, benefits, abusive atmosphere and other terms and conditions of employment, because of sex and retali ation"; and 5) that "[t]he discrimination ... is a part of a pattern and practice of sex discrimination" that "resulted from a

15continuing and intentional policy of sex discrimina tion by

respondents, which predates 1980."17

The charges of the male appellants included all the allegations made by female appellants, with the exc eption of the first one. In addition, the male appellants all eged that the men were "discriminatorily treated because [the ir] 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 exc eption of the one Hispanic male appellant, whose charges incl uded the allegations made by the male appellants). In ad dition, the Hispanic appellants alleged that they were acco rded less favorable terms and conditions of employment t han that accorded "White . . . mailers" and that the pa ttern of discrimination to which they were subjected also wa s 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 complet e its investigation within 180 days. Each appellant recei ved 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 cop y 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 ret aliation by appellees as a result of their filing of the ini tial charges and the instant lawsuit. The EEOC apparently did no t issue right to sue letters regarding the allegations of r etaliation.

B. The Amended Complaint

The complaint was amended on October 9, 1992, to allege eight counts of sex, race, color, and nation al origin

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17. See, e.g., App. at 162.

18. See, e.g., App. at 174.

19. See, e.g., App. at 192, 451.

16discrimination and retaliation, in violation of Tit le VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.S 20 00(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 violation s 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, 19 93,

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 N JLAD sex

and race discrimination and retaliation claims were dismissed, pursuant to Rule 12(b)(1), for failure t o exhaust administrative remedies and for lack of timeliness, including lack of continuing violations; the male a ppellants'

Title VII and NJLAD claims were dismissed under Rul e 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 1 4, 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 brough t under NJLAD to events occurring after June 1990 and the surviving race discrimination claims under Title VI I 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 s tatute. 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 sect ion

1981 race discrimination claims were limited to eve nts 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

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20. The Amended Complaint also added three new plai ntiffs-appellants, Maureen Dolphin, Jacqueline Fogarty, and Ronald Pla ckis, who did not file charges of any kind with the EEOC. Anjelino, 1 993 WL 170209 at *4.

See discussion infra of exhaustion.

17appellants' labor relations claims under section 30 1 of the

LMRA and Title I of the LMRDA. Many claims were dismissed under Rule 12(b)(1) for failure to exhaus t and for lack of timeliness. The remaining LMRA claims were limited to events occurring after June 9, 1992. Anjelino, 1 993 WL 170209 at *14; Anjelino, No. 92-2582 (D.N.J. Aug. 2 2, 1996).

In an Order dated July 8, 1993, the court denied th e appellants' motion for reconsideration of the May 1 4 Order. Then, on September 10, 1993, the court denied appel lants' motion to review the appropriate statute of limitat ions under the NJLAD. Anjelino, No. 92-2582 (D.N.J. July 8, 1993).

On January 29, 1996, the court affirmed the magistr ate 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 C ourt sanctioned their counsel in the amount of $5,000, pursuant to 28 U.S.C. S 1927, on grounds that the m otion 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 grante d summary judgment for defendants on the remaining cl aims of the Hispanic appellants (which had been severed from the claims of the non-Hispanic appellants on Octobe r 25, 1995, during the discovery process). These included Title VII sex discrimination claims by three female Hispa nics, which related to events occurring after July 1991 a nd their

NJLAD sex discrimination claims for events occurrin g after July 1990; the Hispanic appellants' race discrimina tion

claims under section 1981 and NJLAD for events occu rring after June 1990 and under Title VII, for events occ urring after July 1991; the Hispanics' national origin cla ims under Title VII for events occurring after July, 1991; th e Hispanics' retaliation claims under Title VII, NJLA D, and section 1981; and the Hispanics' LMRA claim for eve nts 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

18remaining claims of the non-Hispanic appellants), i ncluding

the remaining Title VII, NJLAD, and section 301 cla ims. 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 Distric t 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 supp lemental jurisdiction over the pendant state claims pursuant to 28 U.S.C. S 1367(a).

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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 c ompleted with respect to the former, but not as to the latter. Subsequent ly, on May 13, 1996, the District Court dismissed the claims of the Hisp anic appellants. The claims of the non-Hispanic appellants were dismisse d in an Order dated March 14, 1997. The Hispanic appellants filed an ap peal of the May 1996 Order dismissing their claims on March 18, 199 8, at the same time that the appeal of the non-Hispanic appellants wasf iled. Thus, a single appeal was filed on behalf of all appellants.

The Times argues that the appeal of the Hispanic ap pellants is untimely. The Times asserts that the Hispanics' not ice of appeal should have been filed within thirty days of the May 1996 Order dismissing their claims. We conclude, however, that the Hispan ics' notice of appeal was timely. This case was not appealable to the Thi rd Circuit until the District Court reached a final disposition of all c laims 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 con troversy was not

resolved until that date, the onus for the uncertainty lies with the court that issued the order severing the Hispanics' claims dur ing the discovery process, rather than with the appellants. See Rule 54(b), Fed. R. Civ. P. (stating that in the absence of an express directiv e from the District Court, a judgment upon fewer than all claims or par ties to an action does not terminate the action).

19As to our scope of review, we will start our analys is with

the District Court's dismissal of certain claims un der Rule 12(b)(1). The District Court's Opinion and Order of May 14, 1993, dismissed many counts of the complaint for la ck of subject matter jurisdiction, based on the appellant s' failure

to exhaust administrative remedies and on the bar o f the statute of limitations. In dismissing these counts under Rule 12(b)(1), the court did not attach any presump tion 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, I nc., 682 F.Supp. 227, 231 (D. Del. 1987).

There is a fundamental difference between review un der Rule 12(b)(1), where existence of disputed material facts will not preclude the court from evaluating the merits o f the jurisdictional claim, see Mortensen, 549 F.2d at 89 1, and review under Rule 12(b)(6), where the court is requ ired 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) i n dismissing the counts that failed to meet exhaustio n or timeliness requirements. Our review is plenary. Hor nsby v. United States Postal Service, 787 F.2d 87, 89 (3d C ir. 1986).

We conclude that the District Court erred in consid ering

the Times' failure to exhaust and timeliness defens es as grounds for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Although it is a "basi c tenet" of administrative law that a plaintiff should timely e xhaust all administrative remedies before seeking judicial rel ief, the purpose of this rule is practical, rather than a ma tter affecting substantive justice in the manner contemp lated by the District Court. The rule is meant to "provide c ourts with the benefit of an agency's expertise, and serve jud icial 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 natur e of statutes of limitation" and "do[es] not affect the District Court's subject matter jurisdiction." Hornsby, 787 F.2d at

2089 (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 b ar is particularly inapt in Title VII cases, where the co urts are permitted to equitably toll filing requirements in certain circumstances. Robinson, 107 F.3d at 1021 (citing B owen 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 thi s 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 1 2(b)(6) or Rule 56, as appropriate.

Our review of the District Court's dismissal of app ellants' 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, 1 12 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 su mmary judgement. Rule 12(c); see also Robinson, 107 F.3d at

1021.

As with the anti-discrimination statutes, our revie w of the District Court's dismissal of appellants' LMRA and LMRDA claims on grounds of timeliness and failure to exha ust administrative remedies is plenary. Likewise, our r eview is plenary where the court granted summary judgment on the appellants' labor claims, pursuant to Rule 56(c). S ee Brenner v. Local 514, United Brotherhood of Carpent ers & Joiners of America, 927 F.2d 1283, 1287 (3d Cir. 19 91).

We review the District Court's order affirming the magistrate judge's decision denying discovery to th e appellants, as well as the Court's imposition of sa nctions, 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).

21IV. Discussion

A. Matters Dismissed on Preliminary Grounds

We will start our consideration of the issues on ap peal 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 Discrimi nation

A party invoking federal jurisdiction must establis h that he has standing to sue within the meaning of Articl e III, section two of the Constitution, which limits the c ourts 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 ac tion. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992); Valley Forge Christian College v. Americ ans United for Separation of Church and State, Inc., 45 4 U.S. 464, 473 (1982). Courts assess whether a party has established injury-in-fact, causation, and redressa bility by considering whether the alleged injury falls within the "zone of interests" that the statute or constitutional pr ovision at issue was designed to protect; whether the complain t 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 hi s 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. U nited States v. SCRAP, 412 U.S. 669, 686 (1973); Ass'n. o f Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 152

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22. Article III, section 2 of the United States Con stitution states, in pertinent part, "The judicial Power shall extend to all Cases, in Law or Equity, arising under this Constitution, the Laws o f the United States ...

--to Controversies ... between Citizens of differen t States; ...." U.S. Const., art. III, sec. 2

22(1970). The causation element requires that the inj ury

"fairly can be traced to the challenged action." Wh itmore v. Arkansas, 495 U.S. 149, 155 (1990). The redressabil ity prong of the standing test is meant to ensure that the facts involved in a suit are conducive to judicial resolu tion and are likely to be resolved by court action. Valley F orge, 454

U.S. at 472.

In dismissing the male appellants' sex discriminati on claims for lack of standing, the District Court rea soned that, to the extent that discrimination had occurre d in the Times' mail room, it had been directed at females; thus, the

male workers had not suffered harm and could not as sert cognizable claims of sex discrimination. Anjelino, 1993 WL 170209 at *10-11. This conclusion was predicated up on the court's understanding that, as a general matter, me n do not have standing to bring claims of sex discrimina tion under Title VII. Id. at *10 (citing Spaulding v. Un iversity of Washington, 740 F.2d 686, 709 (9th Cir.), cert. den ied, 469 U.S. 1036 (1984)).

Relying on two Ninth Circuit cases, the court acknowledged, however, that three exceptions to thi s rule have been recognized. Anjelino, 1993 WL 170209 at * 9-10 (citing Patee v. Pacific Northwest Bell Tel. Co., 8 03 F.2d 476, 478 (9th Cir. 1986); Spaulding, 740 F.2d at 70 9). The court found that a cause of action may lie under Ti tle VII if male employees are subjected to discrimination"b ecause they are men." Patee, 803 F.2d at 478. Second, reas oning by analogy from the Supreme Court's associational standing precedent in the context of race discrimin ation, the court concluded that male employees may sue und er Title VII if discrimination directed at women resul ts in a loss of interpersonal contacts or associational rig hts with women. Anjelino, 1993 WL 170209 at *10 (citing Traf ficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209-10 (1972)). Third, based on a ruling by a federal district cour t in Indiana, the court concluded that a cause of action may lie if sex-based discrimination results in pecuniary in jury to both male and female workers. Anjelino, 1993 WL 170 209 at *10 (citing Allen v. American Home Foods, Inc., 644 F. Supp. 1553, 1557 (N.D. Ind. 1986)).

23The District Court concluded that the injuries alle ged by

the male appellants in this action did not fall wit hin any of these three categories. Therefore, the court held t hat the male appellants lacked standing to assert claims un der Title VII and the NJLAD. Anjelino, 1993 WL 170209 a t *10. The court did not, however, analyze appellants' cla im that they suffered pecuniary injury because they were nu mbered on the priority list among women, who were not hire d due to sex discrimination because hiring stopped when t he women's names were reached. The court simply conclu ded, without further comment, that the alleged "multiple discriminatory acts aimed against women directly" w ere "without consequence to the male employees." Id.

On appeal, the Times agrees in part with the Distri ct Court and argues that it is a well-settled proposit ion that men do not have standing to sue for discrimination against women. The Times rejects, however, the associationa l and pecuniary theories of male standing to sue for sex discrimination derived from Trafficante, 409 U.S. a t 209-10, and Allen, 644 F. Supp. at 1557, and contends that men may sue for sex discrimination only if they experie nce discrimination because they are men. The Times argu es that it was proper to dismiss the male appellants' claims because these claims are based not on the male appe llants' sex but "on their membership in a group with low-pr iority list placement that also included the female appell ants 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 h ired.

The appellants argue to the contrary that the male appellants do have standing to sue based on discrim ination 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 t he male appellants appeared at daily "shapes" for hiri ng, they were "sandwiched among the women on the priority li st" and were not hired if the hiring stopped when the n ames of women on the priority list were reached. Thus, they

suffered from the discrimination as well.

24Appellants assert that their position on standing i s

supported by our decision in Hackett v. McGuire Bro thers Inc., 445 F.2d 442 (3d Cir. 1971). We agree. In Hac kett, the plaintiff, because of his race, had been subjected to a separate seniority and vacation schedule, intimidat ed, 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 t o avoid construing the standing doctrine in ways that under mine Congress' objective in enacting Title VII.

The national public policy reflected . . . i n 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 c ase or controversy in the Article III sense, then h e 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 controve rsy requirements to have been satisfied by the plaintif f 's allegations that demonstrated that he was a "person aggrieved" as required by the statute; he was"aggri eved" because he alleged that the employer had injured hi m in violation of Title VII while he was employed there. Id. at 445. We concluded that at the pleading stage nothin g beyond a colorable allegation of injury is required of the Title VII plaintiff. In Hackett, where the plaintif f 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 associati onal standing case in the race discrimination context. I n Trafficante, the Supreme Court found that two tenan ts who alleged a loss of the social and professional benef its of living in an integrated community, due to landlords ' alleged

25discrimination against racial minorities, had stand ing to

sue under Title VIII of the Civil Rights Act of 196 8, 42 U.S.C. S 3610(a).23 Id . at 212. Like our analysis in Hackett, the Trafficante Court's analysis was textual. The C ourt rejected an interpretation of Title VIII that would limit persons entitled to sue to "objects of discriminato ry housing practices" because it found the definition of"perso n aggrieved" contained in section 810(a) of Title VII I -- "(a)ny person who claims to have been injured by a discrim inatory housing practice" -- to be "broad and inclusive." I d. at 208. Thus, the Court concluded, "We can give vitality to [the Act] only by a generous construction which gives standin g to sue to all in the same housing unit who are injured by racial discrimination in the management of those fa cilities 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 aggrieve d," implied a Congressional intent to be liberal in all owing suits that effectuate the purposes of anti-discrimination statutes. In Novotny, we allowed a male plaintiff, who claime d to have been discharged for failing to adhere to a com pany policy of sex discrimination against women, to sue under 42 U.S.C. S 1985. Id. at 1240-45. Our holding in No votny was predicated upon the similarity in purpose and

semantic structure between Title VII's enforcement provision and section 1985.24 Many courts have expr essly

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23. Title VIII is analogous to Title VII. Title VII I states, in pertinent
part, "Any person who claims to have been injured by a di scriminatory housing practice or who believes that he will be ir revocably injured by a discriminatory housing practice that is about to oc cur 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 p erson or property.' By its terms, the statute gives no hint of any require ment that the `other' must have any relationship to the `person or class of persons' which the conspiracy seeks to deprive of equal protection, pr ivileges or immunities," to Hackett, 445 F.2d at 445"[Section 7 06, 42 U.S.C. S 2000e-5] permits `a person claiming to be aggriev ed' to file a charge with the Commission. . . . A person claiming to be aggrieved may never have been an employee of the defendant. . . . An ag grieved person obviously is any person aggrieved by any of the for bidden practices."26followed 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 o f 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 in volved 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 stan ding. Id. at 92-94. Our standing analysis was based on the plain tiff 's status as an active employee at the time that the s uit was commenced, id. at 94, and the pecuniary nature of plaintiff 's alleged injury. We observed that we ha d to determine whether "there is a logical nexus between the status asserted and the claim sought to be adjudica ted." Id. (citing Flast, 392 U.S. at 102). Because the plaint iff 's

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25. See EEOC v. Mississippi College, 626 F.2d 477, 482 (5th Cir. 1980), cert. denied, 453 U.S. 912 (1981) ("We agree with o ther circuits that have held that the strong similarities between the langu age, design, and purposes of Title VII and [Title VIII] require that the phrase `a person claiming to be aggrieved' in [Title VII] must be co nstrued in the same manner Trafficante construed the term"aggrieved per son' 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 ob ject of discrimination, but who alleged injury because of r ace discrimination against another, was a "person aggrieved" within th e meaning of Title VII); Stewart v. Hanson, 675 F.2d 846, 850 (7th Cir . 1982) (finding white woman who had been deprived of interracial associat ions in workplace a "person aggrieved" within meaning of Title VII); EE OC 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 bl acks); 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"ag grieved person" within meaning of the statute); Gray v. Greyhound L ines, 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).

27alleged 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 discrimi natory provisions of the pension plans under consideration ." He would, therefore, be allowed to assert his claim. I d.

In Hospital Council v. City of Pittsburgh, 949 F.2d 83, 87 (3d Cir. 1991), we again discussed causation as a p art of our analysis of standing. Hospital Council involved alleged threats by a city and county to discriminate agains t 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 th e hospitals had alleged past and imminent harm, id ., the

District Court dismissed the case for lack of stand ing on the theory that the alleged harm was not "real inju ry" that was "fairly traceable" to defendants' actions, but "purely hypothetical." Id. at 86. We reversed, explaining t hat

The complaint alleged a classic form of qual itatively concrete injury -- direct financial harm. Th e complaint alleged that members had been subjected to a nd were

threatened with discrimination in the initia tion 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 cau se direct

financial harm to the victims.

Id. at 87. Accord Allen, 664 F. Supp. at 1553-57 (f inding

that males who had been terminated after firm-wide downsizing had standing to sue under Title VII, whe re they argued that management had closed the facility in q uestion because it primarily employed women, whose jobs wer e 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 t hey have established standing. Their allegations that sex discrimination adversely affected their being hired as extras, as well as their seniority on the priority list,

28demonstrate actual injury. We hold that indirect vi ctims of

sex-based discrimination have standing to assert cl aims 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. Tha t the injury at issue is characterized as indirect is imm aterial, as long as it is traceable to the defendant's unlawful acts or omissions. SCRAP, 412 U.S. at 689 n.14; Hospital Co uncil,

949 F.2d at 87.26

We will, therefore, reverse the District Court'sfin ding that the male appellants lack standing to assert th eir 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 N JLAD that has been developed by the New Jersey courts, including the state law on standing. See, e.g., Cra ig 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 a gainst 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 adopt ed methodology of proof used in Title VII cases for NJ LAD 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 liti gation

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26. In fact, Hackett, 445 F.2d at 445-46, Rosen, 47 7 F.2d at 94, and Hospital Council, 949 F.2d at 87, arguably stand fo r the proposition that, where the alleged harm is pecuniary, a Title VII ac tion should be characterized as involving direct discrimination, a s 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 t o 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 a sserting, in the employment context, an associational claim for stan ding.

29under federal anti-discrimination statutes"). This result is

also suggested by the structural similarities betwe en 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 appell ants'

hostile work environment sexual harassment claims w as based on its determination that their EEOC charges did not state a complaint of sexual harassment. As the cour t framed the issue, its concern with the charges rela ted to "whether appellants' EEOC complaint was worded sufficiently to place the EEOC on notice of appella nts' 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 conc luded that the appellants' charges were too vague to give notice of

sexual harassment claims. Id. Based on its view tha t an appreciable difference exists between the terms"abu sive atmosphere" and "hostile work environment," the Dis trict

Court dismissed the sexual harassment claims for fa ilure to exhaust administrative remedies. Id. The legal prec edent cited by the court was Howze v. Jones & Laughlin St eel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) and Ostap owicz 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 clai ms. Anjelino, 1993 WL 170209 at *9.

We do not agree, however, either with the interpret ation 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 discrimin ation

30in job classifications, resulting in women being la id-off from

work, while men with less seniority were either ret ained or

recalled to work at an earlier date than the women. 541 F.2d at 396-97. In Ostapowicz, we set out the proce dures for filing discrimination claims and the reasons fo r 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 conc iliation does not succeed, the EEOC notifies the aggrieved p arty of his or her right to bring suit. The preliminary ste p of the filing of the EEOC charge and the receipt of the ri ght to sue notification are "essential parts of the statutory plan, designed to correct discrimination through administ rative conciliation and persuasion if possible, rather tha n by

formal court action." Id. at 398. Because the aim o f the statutory scheme is to resolve disputes by informal conciliation, prior to litigation, suits in the dis trict 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 tha t the District Court had lacked jurisdiction to hear the case because the right to sue letter, upon which the pla intiff relied in filing suit, and the EEOC's initial repor t in the case only concerned employees in the company's ship ping division. The plaintiff worked in a different divis ion. Subsequently, however, the plaintiff filed addition al EEOC charges that related to the division in which she w orked. 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 membe rs of the class referred to both the initial and subseque nt EEOC charges.

On these facts, we rejected the defendant's argumen t that the scope of the initial charges deprived the trial court of jurisdiction to hear the case. We found that the ad ditional charges, which were filed during the pendency of th e administrative proceedings, "may fairly be consider ed explanations of the original charge and growing out of it." Id. In this way, we affirmed that the"parameters of a civil

31action in the District Court are defined by the sco pe 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 b efore 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 o f the situation during its settlement efforts, the purpos e 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 na ture of the filing requirement and its effect on the court' s subject matter jurisdiction in discrimination suits. In Hic ks, the plaintiff had filed claims of race discrimination a nd retaliation with the EEOC. His subsequent law suit also

contained a claim for sex discrimination. The Distr ict 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 E EOC had refused to accept the amendment. In view of thi s factual disparity, we reversed, holding that a cour t could

hear a claim of sex discrimination where it was unc lear 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 char ge should be liberally construed." Id. at 965. We pointed out th at the purpose of the filing requirement is to enable the EEOC to investigate and, if cause is found, to attempt to u se informal means to reach a settlement of the dispute . Id. at 963. If the complaint is not well founded or if rec onciliation is not successful, a right to sue letter is issued to the complainant.

Thus, the effect of the filing requirement i s essentially to permit the EEOC to use informal, non-judi cial means of reconciling the differences between the charging party and an employer.

32Id. (citing Ostapowicz).

Once again, in Howze, a Title VII suit in which the plaintiff alleged that she had been denied a promot ion due to racial discrimination, we reversed the District Court's determination that the plaintiff could not amend he r complaint to include a claim of retaliation. 750 F. 2d at 1209-12. The defendant argued that the plaintiff sh ould not have been given leave to amend her complaint becaus e no evidence had been presented that the retaliation cl aim was

ever submitted to the EEOC. Id. at 1212. The court found, however, that, as in Ostapowicz, the plaintiff's "n ew retaliation claim may fairly be considered [an] exp lanation[ ] of the original charge . . .." Id. (citations omitt ed) (relying on Hicks to hold that EEOC investigation does not set outer limits on the scope of the civil complaint.) Moreov er, the EEOC completed its investigation and determined tha t

there was no reasonable cause to believe that the e mployer had discriminated against Howze before it issued it s right

to sue letter.

In light of the precedent established by Ostapowicz

, Hicks, and Howze, we do not find, as the Times clai ms, that these cases support its position that the appe llants failed to exhaust their administrative remedy on th e sexual harassment claim. We conclude to the contrary that appellants' notification of their charges was suffi cient because the terms "abusive," "hostile,""environment ," and "atmosphere" have been used interchangeably to desc ribe sexual harassment. In particular, appellants suppor t the sufficiency of their charges with references to rec ent Supreme Court and Third Circuit decisions concernin g sexual harassment. See, e.g., Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64, 66-67 (1986); Harris v. Fo rklift 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. 1 995); 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.2 d at

33396-97; Howze, 750 F.2d at 1212; Hicks, 572 F.2d at 964-

65.28

The foregoing analysis also applies to the dismissa l of the female appellants' NJLAD sexual harassment claims f or failure to exhaust administrative remedies. This re sult is suggested by the similarities between the procedura l requirements of Title VII and NJLAD, and the work-s haring agreements between the two agencies, pursuant to wh ich the NJDCR deferred handling of the NJLAD claims to the EEOC. See App. at 490-94 (letter from NJDCR identif ying 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 betw een

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28. Because we find the terms interchangeable, we w ill not go to consider what further information, such as the original comp laint with its section entitled "Hostile Work Environment" or the appellan ts' January 5, 1993, affidavits, the EEOC would have had the opportunity to consider if it had completed its investigation, rather than issuing th e right to sue letters prior to its completion. The present case differs f rom Ostapowicz, Hicks, and Howze in that the EEOC did not perform any in-d epth investigation and made no attempt at reconciliation. Moreover, th e EEOC acknowledged that it could not complete its investi gation within the statutory 180 days; for this reason, the EEOC state d that it would issue the right to sue letters so that the appellants cou ld proceed in court without waiting for any further investigation by th e EEOC. If, however, the EEOC had pursued its investigation, it would ha ve had before it not only the original charges, alleging "abusive atmosp here" but also a copy of the original district court complaint and the af fidavits. In a case in which the EEOC has conducted a complete investigati on, it will have presumptively prepared a report explaining the reas ons for its recommendation; completed a running case log indica ting 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 Ostapow icz 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 subsequ ent 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 hav e notification of such subsequently filed allegations when it does no t complete its investigation prior to issuing the right to sue let ter.

34EEOC and state agencies); id. at S 1601.70 & 1601.7 1

(describing deferral process).

However, our conclusion as to the claims against th e Times does not apply to the claims against the Unio n. The

District Court's dismissal of all Title VII and NJL AD claims brought by the appellants against the Union and app ellee

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 lia ble under Title VII, the record here does not demonstra te that the Union itself instigated or actively supported t he discriminatory acts allegedly experienced by the ap pellants. Therefore, the Union is not liable. See Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217-18 (1979); B erger 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 respons ible 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 exhauste d 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 int ernal administrative remedies negatively impacts their ab ility to prove the Union liable under Title VII and the NJLA D. We discuss more fully our reasoning regarding the appe llants' failure to exhaust the Union's internal grievance p rocedures infra, in Section IV.A.3.

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29. See App. at 105, 1103, 1136.

30. See, e.g., App. at 1682, 1767, 2387.

35ii. Retaliation Claims

The District Court noted that the EEOC had not issu ed right to sue letters to the appellants regarding th eir

retaliation claims and then dismissed these claims for failure to exhaust administrative remedies. See Anj elino,

1993 WL 170209 at *10. We will reverse this dismiss al of

the retaliation claim for failure to exhaust admini strative remedies on essentially the same basis as we revers e the court's dismissal of the female appellants' hostile work

environment claim.

In the case at bar, the alleged retaliatory delistm ent occurred after the appellants initiallyfiled admini strative charges in May and June of 1992, and after they ori ginally filed a complaint in June of 1992. Thus, it would h ave 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 sup ra, we will not penalize the appellants for the EEOC's fai lure 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 matte r of right, 29 C.F.R. S 1601.28(a)(2), and where letters had be en received with respect to the initial charges. Under these circumstances, and in light of the numerous allegat ions of discrimination contained in the record, we will rev erse 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 i n the District Court are defined by the scope of the EEOC investigation which can reasonably be expected to g row out of the charges of discrimination, including new act s which occurred during the pendency of proceedings before the Commission"), and Howze, 750 F.2d at 1212 (plaintif f'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 lett er, in particular a second one for a retaliation claim, is curable at

36any point during the pendency of the action. Goodin g v.

Warner-Lambert Co., 744 F.2d 354, 357-59 (3d Cir. 1 984) (eschewing "highly technical pleading rules, which only serve to trap the unwary practitioner," in favor of notice pleading; reversing dismissal of Title VII action w here second right-to-sue letter issued after complaintfi led); accord Williams v. Washington Metro. Area Transit A uth., 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 Retaliati on Claims under Title VII

Of the sex and race discrimination claims that surv ived 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 occurri ng after July 1991. This dismissal for lack of timeliness wa s based on the court's determination that, except for their delistment, the appellants had not alleged a single objectionable policy or practice that occurred with in the limitations period. Anjelino, 1993 WL 170209 at *7. The court reasoned that the appellants would not be abl e to prove by a preponderance of the evidence that their claims were not stale or that their allegations met the st andards for applying the continuing violations theory of ti meliness.

Id. at *6-8.

However, as we discuss supra in Part III, the Distr ict Court reviewed these claims under Rule 12(b)(1) rat her than under Rule 12 (b)(6) or Rule 56. In doing so, the court failed to consider the significance of the fact tha t the appellants claimed that certain alleged acts of

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31. The Amended Complaint also added three new plai ntiffs, Maureen Dolphin, Jacqueline Fogarty, and Ronald Plakis, who had not filed charges of any kind with the EEOC. The appellants h ave not mentioned the dismissal of these three plaintiffs in their br iefs; we do not, therefore,

address this issue.

37discrimination took place within the limitations pe riod. The

Times disputed these claims of timeliness before th e District Court and continues to do so on appeal. Th us, 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 u nder Rule 12 (b)(6) and Rule 56 have left such considera tions to a jury. See Williams v. Borough of West Chester , 8 91 F.2d 458, 460 (3d Cir. 1989); Anderson, 477 U.S. at 248.

ii. Sex and Race Discrimination and Retaliat ion

Claims under NJLAD

We also find that the District Court erred in dismi ssing 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.2 d 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 s ix year or a two year statute of limitations. Id. at 661. W hereas 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 perio d. 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 w as issued, were subject to a six year limitations peri od. 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.

382. Section 1981 Sex and Race Discrimination and

Retaliation Claims

a. Sex Discrimination and Retaliation Claims

The section 1981 claims brought by Hispanic women f or alleged sex discrimination and/or harassment were dismissed by the District Court on ground that gend errelated claims are not cognizable under this statut e. Anjelino, 1993 WL 170209 at *11. We will affirm the District Court's dismissal of the gender related claims on t his basis. Because the statute, on its face, is limited to iss ues of racial discrimination in the making and enforcing o f contracts,32 courts have concluded that sex-based c laims 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 inten tion 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-Ameri can 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 Claim s

The District Court limited the Hispanic appellants'

section 1981 race discrimination claims to events o ccurring after June 1990. Anjelino, 1993 WL 170209 at *11. T he

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 est ablishing a limitations period, analogized section 1981 claim s to

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32. 42 U.S.C. S 1981 provides, in pertinent part, t hat "[a]ll persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts ... a s is enjoyed by white

citizens...." 42 U.S.C. S 1981.

39claims under state limitations periods, either pers onal

injury or breach of contract claims. See, e.g., Run yon, 427 U.S. at 180-82 (affirming application of state two year personal injury statute of limitations to section 1 981 claims). This borrowing was necessary because secti on 1981 does not contain a limitations period. See Joh nson 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, w hen an

action contained both section 1981 and NJLAD claims , the courts presumed that the same statute of limitation s would apply. Id. Prior to Montells, the federal courts in New Jersey would apply a two or a six year statute of limitati ons to section 1981 and NJLAD claims, based on whether a c ourt analogized a claim as one for personal injury or co ntract.

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 d ecided 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 fi nd that the appellants, who filed the instant section 1981 action prior to the decision in Montells and who ma y 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 Pennsylv ania personal injury statute of limitations retroactivel y when there was no reliable holding which statute of limi tations 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 retroactive ly).

The foregoing analysis does not apply to the Union

defendants for the reasons cited in the Section IV. A.1.b. For

40the reasons stated there, we will affirm the dismis sal 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 appellant s had not exhausted the Union's internal remedies prior t o filing suit. Id. at *13. Likewise, appellants' claims unde r Title I of

the LMRDA were dismissed for failure to exhaust and lack

of timeliness.

We will affirm the dismissal of these claims becaus e the appellants have not demonstrated that they exhauste d the Union's internal grievance procedures prior to fili ng 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' complaint s to the Union regarding their alleged mistreatment by Times ' personnel were being presented to the Baar Committe e at the same time that they were before the District Co urt. See Anjelino, 1993 WL 170209 at *13-14. Under these circumstances, we find that dismissal of the LMRA c laims was appropriate. See Angst v. Mack Trucks, Inc., 96 9 F.2d 1530, 1538 (3d Cir. 1992) (holding that union membe rs were required to exhaust grievance and arbitration procedures contained in CBA prior to filing suit un der LMRA); see also Clayton v. Int'l. Auto. Workers, 45 1 U.S. 679, 692 (1981).

For the same reason, we will affirm the dismissal o f the LMRDA claims. See Pawlark v. Greerwalt, 628 F.2d 82 6, 830-31 (3d Cir. 1980), cert. denied, 449 U.S. 1083 (1981) (stating that internal exhaustion requirement is no t absolute and reversing dismissal of LMRDA on record of particular case, but noting that suits by union mem bers who cannot demonstrate a "valid reason" for failing to exhaust internal procedures usually will be dismiss ed 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

41and NJLAD sex and race discrimination and retaliati on

claims of the non-Hispanic and Hispanic appellants, respectively, on summary judgment grounds. Thus, th e 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 st and, 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 tha t were not considered by the District Court in its conside ration of the motion for summary judgment. Because of the rev ival of disputed factual issues, summary judgment may no lo nger be appropriate.

On remand, the District Court must review these iss ues in light of Rule 12(b)(6) and Rule 56 standards. We caution the District Court that, in doing so, it may need t o reconsider its prior ruling that the Baar Award is sufficient in and of itself to constitute a "legitimate, nondiscriminatory reason for rejection." We add thi s note of caution because of the expansion of the relevant ti me period to be considered and the impact that further factual development may have on this conclusion by the Dist rict Court. We point in particular to the findings of th e 1988 Adelman Award concerning the standards of enforceme nt over the years of the Baar Award. See App. at 124-1 37. The

issue of whether the Baar Award has been enforced a nd/or strictly complied with may affect the disparate tre atment and the disparate impact claims.

C. Collateral Issues

1. Discovery

The District Court's denial of the appellants' moti on for further discovery was based on representations made by appellants' counsel to a magistrate judge in an aff idavit opposing a motion to dismiss the case. In the affid avit, counsel stated that "[p]laintiffs are prepared to g o to trial at this time, and do not require further discovery." A pp. at

688. The District Court found this declaration to b e 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.

42at 25. Applying the doctrine of judicial estoppel, which the

court characterized as designed "to prevent litigan ts from engaging in precisely this kind of `tactical' decis ionmaking," the court refused the appellants' request to overturn the magistrate's order denying them furthe r discovery.

The appellants argue on appeal that the District Co urt abused its discretion in affirming the order denyin g them discovery. They claim that counsel's statement that no further discovery was needed was based on the assum ption that no party would be granted further discovery; t hey assert that it was not inconsistent with prior representations by counsel or made in bad faith. Fo r this reason, they urge that the court should not have af firmed the order on grounds of judicial estoppel. The appe llants argue that, by allowing the appellees to proceed wi th discovery while denying the same to them, the Distr ict Court "profoundly changed the balance between the parties."

We find, however, that the District Court did not a buse its discretion by holding counsel to the representa tion that no further discovery was needed. On the basis of th e record before us, we find no cause for disturbing the cour t's application of judicial estoppel to "preserve the i ntegrity of the courts by preventing litigants from `playing fa st and loose with the courts.' " Anjelino, No. 92-2582 (Ja n. 29, 1996) at 3 (quoting Scarano v. Central R.R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953)); accord M cNemar 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 deny ing discovery to appellants' counsel is affirmed.

2. Sanctions

Although a trial court has considerable discretion in imposing sanctions, it is settled law that an attor ney must have notice and an opportunity to be heard on the possibility of being sanctioned, consistent with th e mandates of the due process clause of the Constitut ion. Martin v. Brown, 63 F.3d 1252, 1262-64 (3d Cir. 199 5). The requisite notice must be "particularized" so that a party is

43aware of the "particular factors that he must addre ss if he

is to avoid sanctions." Jones v. Pittsburgh Nat'l C orp., 899 F.2d 1350, 1357 (3d Cir. 1990). We have vacated ord ers imposing sanctions where we found that notice was n ot sufficiently particularized. For instance, we will consider it

an abuse of a district court's discretion if it doe s not made it clear that an attorney might be sanctioned pursu ant 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 distinguish ed from Rule 11, Fed.R. Civ.P., which does not require such a finding, see Fellheimer, 57 F.3d at 1225. Accord Ma rtin, 63

F.3d at 1262-64.

Moreover, sanctions relating to abuse of the discov ery 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 imp osing sanctions on this ground, we therefore require that a district court make explicit the basis for its impo sition of discovery related sanctions. It is impossible for u s to

determine whether a court has exercised sound discr etion in imposing sanctions if the record does not provid e a justification for the order. Id. at 1264.

After reviewing these prerequisites for the imposit ion 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 th at 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 di d not refer

to 28 U.S.C. S 1927. The District Court's failure t o give particularized notice to counsel was inconsistent w ith our precedent. See Martin, 63 F.3d at 1264; Jones, 899 F.2d at

1358.

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33. This statute states, in pertinent part, that "a ny 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 b ecause of such

conduct." 28 U.S.C. S 1927.

44Moreover, while the order imposing sanctions did se t

forth the statutory basis for the court's action, t he $5,000 penalty imposed by the court was not based upon an

assessment of reasonable costs of counsel's miscond uct. This, too, is grounds for our finding that the Cour t abused its discretion in imposing sanctions upon appellant s' 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 dismissi ng 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

45