Anjelino v. New York Times ( 1999 )

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    Precedential or Non-Precedential: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