Anjelino v. The N.Y. Times Co.

Page 73

200 F.3d 73 (3rd Cir. 1999)

KAY ANJELINO; ISRAEL CABASSA; ALICIA CARRANZA; JOANN COANGELO; KATHLEEN DEANGELO; MARGARET DEANGELO; EDDIE HUMPHREY; SHEILA KELLY; MARK S. KORNBLUM; ROBERT LAURA; STEPHEN W. MAGGIO; HILARY MENDELSON; BIRGITTA MENDOLA; LOIS MOSS; NOREEN MOSS; ARTHUR O'CONNELL; MILAGROS PEREIRA; RUTH RICHARDSON; NANCY J. SIMATOS; ELLEN V. SIMS; ANASTASIOS SPARTOS; DANIEL STRINGER; LILLIAN SULLIVAN; ROSA M. TORRES; ANNA MARIE TRAUSE v. THE NEW YORK TIMES COMPANY; ARTHUR OCHS SULZBERGER, JR.; NEW YORK MAILERS' UNION NO. 6; GEORGE MCDONALD; ITU NEGOTIATED PENSION PLAN (D.C. Civil No. 92-cv-02582)

KAY ANJELINO; ISRAEL CABASSA; ALICIA CARRANZA; JIMMY CARROLL; JOANN COANGELO; MAUREEN CONROY; MAUREEN DOLPHIN; KATHLEEN DEANGELO; MARGARET DEANGELO; JACKIE FOGARTY; EDDIE HUMPHREY; JANET KHOE; SHEILA KELLY; DENNIS KNAPP; MARK S. KORNBLUM; ROBERT LAURA; STEPHEN W. MAGGIO; HILARY MENDELSON; BIRGITTA MENDOLA; LOIS MOSS; NOREEN MOSS; ARTHUR O'CONNELL; MILAGROS PEREIRA; RONALD PLAKIS; RUTH RICHARDSON; NANCY J. SIMATOS; ELLEN V. SIMS; ANASTASIOS SPARTOS; DANIEL SPRINGER; LILLIAN SULLIVAN; ROSA M. TORRES; ANNA MARIE TRAUSE v. THE NEW YORK TIMES COMPANY; ARTHUR OCHS SULZBERGER, JR.; NEW YORK MAILERS' UNION NO. 6; GEORGE MCDONALD; ITU NEGOTIATED PENSION PLAN (D.C. Civil No. 93-cv-02870)

Kay Anjelino, Israel Cabassa, Alicia Carranza, Joann CoAngelo, Kathleen DeAngelo, Margaret DeAngelo, Eddie Humphrey, Sheila Kelly, Mark S. Kornblum, Robert Laura, Stephen W. Maggio, Hilary Mendelson, Birgitta Mendola, Lois Moss, Noreen Moss, Arthur O'Connell, Milagros Pereira, Ruth Richardson, Nancy J. Simatos, Ellen V. Sims, Anastasios Spartos, Daniel Stringer, Lillian Sullivan, Rosa M. Torres and Anna Marie Trause, Appellants

No. 98-6024

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued November 5, 1998

Filed December 2, 1999

As Amended February 22, 2000

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

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Josee G. Charvet, Esquire (Argued) Shneyer & Shen, P.C. 1085 Teaneck Road Teaneck, New Jersey 07666, Michael Shen, Esquire Shneyer & Shen, P.C. 2109 Broadway, Suite 206 New York, NY 10023, Attorneys for Appellants

Paul Salvatore, Esquire (Argued) Loren Gesinsky, Esquire Ravi Motwani, Esquire Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299, Attorneys for Appellees The New York Times Company and Arthur Ochs Sulzberger, Jr.

Paul L. Kleinbaum, Esquire Zazzali, Zazzali, Fagella & Nowak One Riverfront Plaza Newark, NJ 07102, Richard Rosenblatt, Esquire (Argued) Boyle, Tyburski & Rosenblatt 8085 East Prentice Avenue Englewood, CO 80111, Attorneys for Appellees New York Mailers' Union No. 6 and George McDonald

Before: SCIRICA and ROTH, Circuit Judges, and SCHWARTZ,¹ District Judge

OPINION OF THE COURT

ROTH, Circuit Judge:

The appellants, a group of former mail room employees of the New York Times Company (the "Times") brought an employment discrimination action against the Times; its publisher, Arthur O. Sulzberger, Jr.; New York Mailers' Union No. 6; and George McDonald, the president of the Union. The appellants were members of the Union while employed by the Times. All the appellants, female and male, Hispanic and non-Hispanic, alleged discrimination by the Times on the basis of sex. In particular, they alleged sex- based discrimination with respect to compensation and assignment of work and also retaliation; the female appellants also alleged sexual harassment. In addition, the Hispanic appellants alleged discrimination and harassment because of race, color, and national origin.²

In response to the Times' pre-trial motions, the District Court dismissed the Amended Complaint in its entirety. The court reached the merits of the claims in only a few instances. Most counts were dismissed for lack of subject matter jurisdiction due to the appellants' failure to exhaust administrative remedies or to their lateness in filing charges. The male appellants' sex discrimination claims were dismissed for lack of standing to sue under Title VII and NJLAD. The District Court granted summary judgment for appellees on the remaining counts.

We conclude that the Amended Complaint should not have been dismissed in its entirety. With respect to the first issue before us, the standing of the male appellants to sue for sex discrimination, we will reverse. We do so based on our determination that "indirect" victims of discrimination have standing to sue under Title VII if they allege a claim of injury-in-fact that is redressable at law. As to most of appellants' other claims of sex and race discrimination and retaliation, we find either that the District Court applied an incorrect legal standard in finding that it lacked jurisdiction or that it misinterpreted the significance of certain evidence in the record that we find probative of discrimination. We will reverse the dismissal of these claims. We will, however, affirm the dismissal of the claims of sex discrimination and sex-based retaliation under section 1981 because section 1981 does not reach these forms of discrimination. We also will affirm the dismissal of the Labor Management Relations Act of 1947 ("LMRA") and the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA") claims against the Union and the Times because the appellants failed to exhaust the Union's internal grievance procedures. In addition, we will affirm the dismissal of the discrimination and retaliation claims brought against the Union because the Union was not the appellants' employer and the appellants failed to exhaust the Union's grievance procedures. Finally, we will affirm the District Court's decision to deny the appellants' further discovery, but we will reverse the sanctioning of appellants' counsel for requesting reconsideration of the discovery decision.

I. Factual Background

The genesis of this case is a controversy between the New York Times and its union shop, on the one hand, and female and Hispanic workers on the other. Before the late 1970s, the Times' mail room employees had been almost exclusively non-minority male. Even at present, women constitute only a fraction of the Times' mailers. Indeed, the Union and the Times do not dispute the appellants' claim that the Union admitted them reluctantly, under order of a review board.

This dispute is a part of a lengthy history of competition among laborers for jobs in the New York metropolitan area newspaper industry. In particular, there has been a long- standing disagreement between labor and management concerning the use of substitute workers to assemble the newspapers. The success or failure of collective bargaining efforts to resolve this conflict is central to the allegations in this action. During the relevant period, the Union represented mail room employees at the Times, the New York Daily News, and the New York Post.

A. Terms of the Collective Bargaining Agreement and the Baar Award

In 1959, after a series of disputes between management and labor, an arbitration board, the Baar Commission, developed new practices for hiring and promotion of mailers at various New York City newspapers. These practices were set forth in the "Baar Award." The Baar Award was designed to ensure the orderly hiring of extra workers when there was not sufficient regular staff to perform necessary daily tasks.

In 1984, under the terms of the collective bargaining agreement (the "CBA") and the Baar Award,³ the Times and the Union, along with other area publishers, agreed to a mail room staffing scheme. Under this plan, the mail room was to be staffed by two groups of workers: "situation holders," who were scheduled to work five shifts per week, and "extras," who were substitute workers. Extras were hired according to seniority at daily "shapes." Management determined extras' seniority on the basis of an annual review of their work records. This review was conducted each year on February 15. Seniority was determined by evaluating the mailer's position on the publisher's "priority list." The priority list divided mailers into five categories, "A" through "E." When first hired, extras were placed into category "E." Extras might advance from category "E" to "D" on the priority list by working at least fifteen shifts per quarter of each year. Although extras might work shifts for any publisher who was a party to the CBA, extras would not appear simultaneously on more than one employer's hiring list. Moreover, continuous employment with a single publisher increased the likelihood of advancement on the priority list. Extras, who transferred from one publisher to another, received credit for shifts worked for the prior employer during the year; transfers were, however, placed at the bottom of the appropriate priority list category of the new employer. In this way, extras who expressed interest and were successful in obtaining employment at daily shapes -- preferably continuous and regular employment with a single publisher -- could advance along the priority list from category "E" to categories "D" and "A-B."⁴

If the annual review of an extra's work record showed that he or she had worked at least 180 shifts during the preceding year,⁵ the individual would be placed into category "A" or "B" on the priority list. If, however, an extra failed to meet the requirements for advancement to "A" or "B" for two out of three successive years, that individual was demoted, or "delisted." Delisted mailers could reapply to work as mailers for publishers that were signatories to the CBA. Their status on a publisher's list would not, however, reflect credit for shifts worked prior to delistment. A four-person board, comprised of two representatives each from the Times and the Union, reviewed complaints arising from the delistment or transfer of...