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GROSS v. NATIONAL BROADCASTING CO.

July 9, 2002

LIZ GROSS, PLAINTIFF,
V.
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.

    OPINION AND ORDER

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.

I. FACTS

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 id.

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

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 for NBC.

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 Sandak Aff.

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 contract.
Q. A couple of months later you were given the opportunity to cut pieces; is that right?

A. Yes.

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 ...


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