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GROSS v. NATIONAL BROADCASTING CO.
July 9, 2002
LIZ GROSS, PLAINTIFF,
NATIONAL BROADCASTING COMPANY, INC., FRANK ACCARINO, DAVID SCHMERLER, BILL MCLOUGHLIN, LESLIE HARRIS, NEAL SHAPIRO, MARC ROSSENWASSER, AND SET ETMEKJIAN, DEFENDANTS.
The opinion of the court was delivered by: Scheindlin, District Judge.
Liz Gross has sued her employer, National Broadcasting
Company, Inc. ("NBC"), and a number of its employees, claiming
sex discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., as
amended by the Civil Rights Act of 1991 ("Title VII").*fn1
NBC now moves to dismiss plaintiffs Complaint under Federal Rule
of Civil Procedure 56(c). For the following reasons, defendant's
motion is granted.
A. NBC and Its Collective Bargaining Agreement with NABET
NBC's broadcast engineering employees, including videotape
editors, are represented by the National Association of
Broadcast Employees and Technicians ("NABET"). See id. ¶ 3.
NABET is the exclusive bargaining representative for its members
and has negotiated and entered into a collective bargaining
agreement ("CBA") with NBC which governs the terms and
conditions of employment for its members. See id.
NABET-represented daily hires are employed on a day-to-day basis
without any job security. See id. ¶ 4. They receive extra pay
in lieu of benefits and are compensated based upon a variety of
factors, including skill level and labor market demand, subject
to a floor established by the CBA. See id. The CBA provides
minimum wage scales by job classification and expressly gives
NBC sole discretion and authority to determine work assignments.
See id. ¶ 5. Gross has been a NABET member since well before
she was hired by NBC. See id. ¶ 6. Accordingly, the terms and
conditions of Gross's employment are governed by the CBA. See
B. Gross's Prior Work Experience
Between 1980 and 1984, Gross worked for WNEW, a New York
television station, as an operations engineer. See Deposition
of Liz Gross ("Gross Dep."), Ex. A to Sandak Aff., at 62-68.
During her tenure at WNEW, a co-worker showed Gross how to use
videotape editing equipment. See id. at 64. While at WNEW,
Gross edited news pieces for the most part. See id. at 66.
In 1984, Gross left WNEW for an editing position at the
American Broadcasting Company ("ABC"), where she was paid union
scale. See id. at 70-72. After a two-year hiatus from the
broadcast industry, Gross secured summer relief work at NBC in
1996, working part-time as a videotape editor for union scale.
See id. at 78-85. For six months during 1987, Gross returned
to ABC, again on temporary status at union scale. See id. at
86-87. Then, for the next seven years, Gross worked as a
freelance editor for the Columbia Broadcasting System ("CBS")
and was paid union scale. See id. at 88-90.
In 1992, Gross secured full-time work as a videotape editor
for King World Productions. See id. at 102. Gross resigned
from King World after approximately eight months to edit a
documentary. See id. at 104. Then, in 1993, Gross was hired as
a full-time freelance editor at Fox Television Network ("FOX")
to work on A Current Affair. See id. at 112. Gross was paid
union scale while at Fox. See id. at 114.
C. Gross's Efforts to Secure a Job at Dateline
During 1995, Gross contacted NBC production manager Leslie
Harris, offering to work as a summer replacement employee on
Dateline. See id. at 145-47. Unable to secure such a position,
Gross called Harris once a month for six months, asking if there
were any openings. See id. at 148. Harris repeatedly advised
Gross that there were no suitable openings for her at Dateline.
See id. Every couple of months, Gross would send a copy of her
resume to Harris or NBC production manager
William McLoughlin. See Deposition of William McLoughlin
("McLoughlin Dep."), Ex. E to Sandak Aff., at 72. In early 1996,
after McLoughlin interviewed Gross, he recommended that she be
interviewed by Betty Corrigan, NBC's Manager of Electronic
Journalism. See id.; see also Gross Dep. at 141-42. At the
time, Dateline's "Opens unit" was in need of one additional
editor. See McLoughlin Dep. at 73. Opens unit editors edit
short promotional pieces used at the beginning of each
Dateline episode but do not edit the same full-length feature
pieces as do other Dateline editors. See Gross Dep. at
152-53. Given the availability of a position in the Opens unit,
McLoughlin "decided to give [Gross] a chance." McLoughlin Dep.
D. Gross Is Offered Per Diem Work at Union Scale as a
Dateline "Opens" Editor
In March 1996, McLoughlin offered Gross editing work for
Dateline as a daily hire. See Gross Dep. at 133-35.
McLoughlin informed Gross that she would be working in the Opens
unit for "standard union pay." Id. Gross accepted the offer
and did not request or attempt to negotiate for a staff
position, for a contract, or for a rate of pay above union
scale. See id. at 133,189-90. When Gross was hired by NBC, she
was not working under a contract for a competing network or news
magazine, was not being paid over-scale, had not been recruited
by NBC, and was not hired to cut full-length pieces.
Gross's initial compensation level, like that of all unionized
NBC editors, was established by the CBA. See McLoughlin Dep.
at 15. Dateline editors were paid union scale when they were
hired, without a personal services contract, except those who
already held above-scale positions at competing networks. As
explained by McLoughlin:
If there was an editor who was working someplace
else, making a higher salary than the NBC rate, we
[were] allowed to look into trying to get them a
higher amount of money in order for them to come work
Id. at 16. According to McLoughlin, no editors hired from
outside NBC to work exclusively in the Opens unit were offered a
contract at hire.*fn2 See Affidavit of William McLoughlin
("McLoughlin Aff.") ¶ 6.
E. Gross's Training Assignment to the "Day of Air" Unit
Gross began working for NBC in March of 1996. See Gross Dep.
at 158. Throughout 1996, Gross had three female supervisors —
Susan Farkas, Sharon Scott and Leslie Harris. See id. at 159.
Because Gross had never used Grass Valley editing equipment (the
type of equipment used at NBC), she admitted that she "might
need some time to get up to speed." See id. at 146.
Accordingly, Gross was given three days of training on the Grass
Valley equipment and then assigned to Dateline's Day of Air
unit.*fn3 See id. at 152. Gross worked in the Day of Air
Unit for about a month. See id. at 154. Gross, who understood
that she was hired to work in the Opens
unit, voiced displeasure to Leslie Harris at being assigned to
the Day of Air unit. See id.
F. Gross's Experiences in the Opens Unit
In April 1996, Gross moved to the Opens unit. By this time,
Gross had learned that some Dateline editors had personal
services contracts with NBC at above-union scale rates. See
id. at 189-90. Shortly thereafter, Gross asked McLoughlin if
she could get a personal services contract. See id. at 178.
McLoughlin denied her request. See id.
In November 1996, Gross met with Senior Broadcast Producer
Marc Rosenwasser, asked for higher pay, and stated that she
wanted to have more of a presence at Dateline. See id. at 176.
In response, Rosenwasser told Gross to put her concerns in
writing. See id. On December 16, 1996, Gross wrote to
Rosenwasser identifying the following problems: technical
development (i.e., her editing room assignment); editorial job
assignments (i.e., that as an Opens editor she was not being
assigned to edit long format magazine pieces); and equitable
compensation (because she was not being paid at a level
commensurate with her experience and talent.). See Memorandum
from Gross to Rosenwasser, dated December 16, 1996, Ex. G to
By early 1997, Gross was in conflict with all of her
co-workers in the Opens unit who requested that she be removed
from the group. Specifically, in April 1997, Leslie Harris met
with Larry Morales, Bill Bryant and Ciarin Clark who expressed
the following sentiments to Harris:
They came to see me about the lack of professionalism
with Liz Gross. They expressed their frustration at
her unwillingness to do her fair share of editing, if
she had finished editing, that she would never let
anyone know and ask for more work, she did not speak
to any of them and she alienated herself from the
group. They found it extremely difficult to
communicate and have a professional relationship with
her. They explained it was impossible to have the
[O]pens team work effectively with one of the members
not talking and even bad mouthing other members. They
asked me to remove [Gross] from the Opens group.
Notes from Leslie Harris dated 4/16/97, Ex. A to the Capodice
Aff. Gross admitted that she was no longer interested in working
in the Opens unit and wanted to edit full-length pieces for
Dateline (often referred to as "cutting pieces"). See id.
In April 1997, Gross asked Neal Shapiro, then NBC executive in
charge of Dateline, for a personal services contract. Gross
describes their conversation as follows:
A. I said to him that I wanted to work towards or get
a personal services contract and how could I go about
doing that. And he said I would need to cut pieces.
That he didn't want to spend any more money on people
in the [O]pens unit, and so that if I cut some pieces
he would consider me for a personal services
Q. A couple of months later you were given the
opportunity to cut pieces; is that right?
Gross Dep. at 291-92. Indeed, Gross immediately was offered the
opportunity to "cut pieces" while in the Opens unit, see
McLoughlin Dep. at 194, and, by June 1997, she was permitted ...