                                                        NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                             No. 16-1552
                            ____________

                         ERNEST KEISTER,
                                 Appellant

                                   v.

                        PPL CORPORATION;
                         IBEW LOCAL 1600

                            ____________

                             No. 16-1553
                            ____________

                          ERNEST KEISTER

                                   v.

                     PPL CORPORATIN;
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1600


                            *Donald P. Russo,
                                Appellant

                 *(Pursuant to Rule 12(a), Fed. R. App. P.)
                            ____________

            On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                      (M.D. Pa. No. 4-13-cv-00118)
           U.S. District Judge: Honorable Matthew W. Brann
                             ____________

           Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     October 26, 2016

                Before: FISHER, VANASKIE, KRAUSE, Circuit Judges.

                                 (Filed: January 27, 2017)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       Ernest Keister appeals the District Court’s grant of summary judgment on his

employment discrimination suit against his employer PPL Corporation and his union, the

International Brotherhood of Electrical Workers, Local 1600. Keister’s attorney, Donald

P. Russo, separately appeals the District Court’s grant of PPL’s Rule 11 sanctions motion

and the Union’s Rule 54 motion for fees. We will affirm the orders and final judgement

of the District Court.

                                             I.

       Keister began working at PPL in 1978. At all relevant times, Keister was a

member of the Union and as such, a party to a collective bargaining agreement (“CBA”)

with PPL. The CBA includes a specific process to request a job reevaluation, including

grievance and arbitration procedures in the event that PPL denies the request. In such an

event, the aggrieved employee may discuss the decision with the Union. The next step is



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
to submit a formal written grievance or request that one be submitted on the employee’s

behalf.

          During his tenure as a “Nuclear Information Services Technician,” Keister

submitted a job reevaluation request. At the time, he was sixty-four years old. Keister felt

that he was undercompensated and that his actual performance went above and beyond

what is required from an employee in that position. PPL took no action on the request,

and Keister’s appeal to the Union was unsuccessful. A Union representative thereafter

instructed Keister to file an official grievance or request that one be filed on his behalf,

which he did not do. Instead, he filed an EEOC charge of discrimination against PPL

alleging that PPL did not reevaluate his position because of his age. On August 30, 2012,

the EEOC dismissed Keister’s charge and mailed Keister a right-to-sue letter.

          On January 17, 2013, represented by Russo, Keister brought an employment

discrimination lawsuit against Appellees.1 Over the course of two years, Keister twice

amended his pleadings. Keister alleges claims of age discrimination against PPL under

the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Pennsylvania

Human Relations Act (“PHRA”).2 Keister alleges a violation of § 301 of the Labor

Management Relations Act (“LMRA”)3 against PPL and the Union.



          1
        Unless otherwise indicated, we will refer to PPL and the Union collectively as
“Appellees” and Keister and Russo collectively as “Appellants.”
      2
        See 29 U.S.C. § 621 et seq.; see 43 Pa.Stat. § 951 et seq.
      3
        29 U.S.C. § 185(a).
                                            3
       The District Court granted Appellees’ motions for summary judgment concluding

that the ADEA claim was time-barred, Keister failed to present a prima facie case of age

discrimination under the ADEA and PHRA, and Keister failed to exhaust his

administrative remedies or present evidence that either Appellee breached their respective

duties as required by the LMRA.

       PPL moved for Rule 11 sanctions, and the Union thereafter moved for attorney’s

fees and non-taxable costs under Federal Rule of Civil Procedure 54(d). Based on

Appellees’ statement of fees, the District Court applied the lodestar rate and granted

PPL’s motion in the amount of $57,958.59, and the Union’s motion in the amount

$57,958.96.

       This timely appeal followed.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary

judgment is plenary.4 We will affirm if the movant shows that “there is no genuine issue

as to any material fact, and … the evidence is such that a reasonable fact finder could find

only for the moving party.”5 We review a district court’s award of attorney’s fees and




       4
           Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000).
       5
           Id.
                                            4
grant of Rule 11 sanctions for abuse of discretion.6 “[W]e evaluate the court’s factual

determinations, legal conclusions, and choice of an appropriate sanction with substantial

deference, considering not whether we would make the same precise determinations, but

only whether those determinations are contrary to reason or without a reasonable basis in

law and fact.”7

                                            III.

       We will first address the District Court’s grant of summary judgment on the

ADEA, PHRA and LMRA claims. We will then turn to the District Court’s grant of Rule

11 sanctions and Rule 54 fees. For the reasons that follow, we will affirm the District

Court’s orders and final judgment.

                                            A.

       We first address Keister’s ADEA and PHRA claims. To establish a prima facie

case of age discrimination under the ADEA or PHRA, a plaintiff must present either

direct or indirect evidence of discrimination.8 To meet this burden through the use of

indirect evidence, a plaintiff must show that a younger and similarly situated employee


       6
          See Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of
Account, 618 F.3d 277, 287 (3d Cir. 2010); Loughner v. Univ. of Pittsburgh, 260 F.3d
173, 177 (3d Cir. 2001).
        7
          Ario, 618 F.3d at 287 (citations and internal quotation marks omitted).
        8
          See Fakete v. Aetna, Inc., 308 F.3d 335, 337-38 (3d Cir. 2002) (an ADEA
plaintiff can prove his claim through the use of either direct or indirect evidence); Kautz
v. Met-Pro Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005) (“The same legal standard applies
to both the ADEA and the PHRA and therefore it is proper to address them
collectively.”).
                                               5
received more favorable treatment.9 Keister was unable to point to a younger and

similarly situated employee that received preferential treatment. Keister argues that he

did not need to meet this burden because he was a “department of one.” 10 Even if we

were to excuse the absence of comparator evidence, Keister failed to introduce any

evidence at all that PPL’s decision was linked to his age. In fact, PPL’s denial of

Keister’s 1986 reevaluation request shows that Keister received the same treatment even

before he reached the ADEA effective age of forty years old.11 His age discrimination

claims necessarily fail.12 We will affirm the District Court’s grant of summary judgment

on the ADEA and PHRA claims.13

                                            B.

       Next, we turn to Keister’s LMRA claim. Keister claims that PPL’s failure to

reevaluate or reclassify his bargaining unit position as a managerial position breached the

CBA in violation of § 301 of the LMRA. Keister argues that the Union’s failure to pursue


       9
          Fakete, 308 F.3d at 340 n.6.
       10
           Appellants’ Br. 8.
        11
           Keister was thirty-nine years old when he submitted his 1986 reevaluation
request. See 29 U.S.C. § 631(a) (limiting ADEA plaintiffs to individuals who are “at least
40 years of age”).
        12
           See Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 2005) (to prevail on an
ADEA claim of age discrimination a plaintiff must show that his age “actually motivated
or had a determinative influence on the employer’s adverse employment decision”
(citations and internal quotation marks omitted)).
        13
           The District Court also concluded that the ADEA claim was time barred because
Keister did not file his complaint within ninety days of receiving the EEOC right-to-sue
letter. Because we will affirm the grant of summary judgment on the merits, we need not
reach the issue of timeliness.
                                              6
the matter breached its duty of fair representation.14 Because the claims against PPL and

the Union are “inextricably interdependent,” we agree with the District Court’s

designation of the LMRA claim as a “hybrid § 301/fair representation claim.”15 “To

prevail against either the company or the Union, … [employee-plaintiffs] must not only

show that [the employer’s action] was contrary to the contract but must also carry the

burden of demonstrating a breach of duty by the Union.”16

       As an initial matter, “an employee is required to attempt to exhaust any grievance

or arbitration remedies provided in the collective bargaining agreement.”17 Unless Keister

unsuccessfully sought relief through the CBA’s grievance and arbitration procedures or

the Court excuses the exhaustion requirement, PPL “cannot be held liable for breach of a

collective bargaining agreement,”18 and the Union cannot be held liable “for any alleged

breach of the duty of fair representation.”19

       Here, it is undisputed that Keister did not exhaust the CBA’s grievance

procedures. Keister instead argues, without the support of legal authority, that he did not

need to file a grievance because PPL failed to outright deny his request. We will not

excuse Keister’s failure to exhaust the grievance procedures on that basis.

       14
          The Union’s duty of fair representation arises under the National Labor
Relations Act, 29 U.S.C. § 151 et seq.
       15
          J.A. 1159 (citing DelCostello v. Int’l Bhd. Of Teamsters, 462 U.S. 151, 164
(1983)).
       16
          DelCostello, 462 U.S. at 194.
       17
          Id. at 163.
       18
          Podobnick v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).
       19
          Id.
                                              7
       Even if we did excuse the exhaustion requirement, Keister’s claim would fail.

First, Keister has not shown that PPL was obligated to entertain his request. Second,

when Keister contacted a Union representative to discuss PPL’s inaction, the

representative told Keister to either personally file a grievance or request that the Union

file one on his behalf. Keister did not take the representative’s advice and offers no

evidence of bad faith on the Union’s part. We will therefore affirm the District Court’s

grant of summary judgment on the LMRA claim.



                                             C.

       We now turn to Russo’s challenge to the District Court’s imposition of Rule 11

sanctions. We find Russo’s arguments unpersuasive. First, he asserts that it is improper to

impose sanctions based on the misleading content of the second amended complaint

because the court permitted leave to amend. We disagree. Such an exception would erode

the goal of Rule 11—accountability.20 Second, Russo maintains that he should not be

sanctioned for failure to succeed on a “new or novel” theory. We agree with the District

Court that “[t]here is nothing ‘novel’ about the ADEA and the type of claim alleged here

… [or] the theories that Mr. Russo has conjured up … by a desire to confuse the Court

and the parties, to shroud the straightforward weaknesses of his client’s claim, and to

       20
         See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (holding that
the purpose of Rule 11 “is to deter baseless filings in district court and thus, consistent
with the Rules Enabling Act’s grant of authority, streamline the administration and
procedure of the federal courts”).
                                              8
manufacture disputes where none existed.”21 Third, Russo claims that awarding

attorney’s fees to PPL amounted to ADEA fee-shifting, which requires a showing of bad

faith. He cites no authority to persuade us to analyze Rule 11 sanctions under the standard

required for ADEA fee-shifting. Finally, Russo argues that because PPL refused to

participate in mediation and mitigate damages, it is improper to award it fees. This

statement is patently untrue. PPL did not refuse to participate in mediation; PPL

requested that mediation occur after Keister’s deposition.

       We cannot conclude that the District Court’s decision to impose Rule 11 sanctions

was “contrary to reason or without a reasonable basis in law and fact.”22

                                             D.

       The District Court likewise did not abuse its discretion in granting the Union’s

motion for Rule 54(d) fees. Under the American Rule, each party must bear the burden of

its own legal expenses. We recognize an exception to that rule where it is clear that the

“losing party litigated in bad faith, vexatiously, or for oppressive reasons.”23 The District

Court concluded that Keister’s LMRA claim against the Union was “unequivocally

lacking in merit[,] … substantively frivolous as it related to his failure to show any

breach of the Union’s duty of good faith representations[,] wholly contrary to Third




       21
          J.A. 1379.
       22
          Ario, 618 F.3d at 287.
       23
          Mobil Oil Corp. v. Indep. Oil Workers Union, 670 F.2d 299, 305 (3d Cir. 1982).
                                            9
Circuit case law as it related to mandated procedural exhaustion in LMRA § 301 actions

… [and] factual[ly] baseless.”24 We agree.

       Russo argues that because the Union filed its Rule 54 motion before final

judgment was entered, the motion was untimely. Under Rule 54, a motion for attorney’s

fees shall “be filed no later than 14 days after the entry of judgment.”25 Nothing in the

text of the rule indicates that filing before entry of judgment is improper and Russo offers

no legal authority to persuade us otherwise.

       Russo also argues that because the notice for the Rule 11 hearing did not

specifically state that the Rule 54 motion would be considered, the Rule 54 decision must

be overturned. We disagree for two reasons. First, the same conduct gave rise to the Rule

11 and Rule 54 motions. Second, during the Rule 11 hearing, Russo affirmatively opted

to respond to the Rule 54 motion when the court offered him the opportunity to wait until

briefing concluded.26 Russo cannot plausibly argue that he was prejudiced by his own

consent to address the Rule 54 motion during the Rule 11 hearing. Based on Russo’s

conduct, we will affirm the District Court’s imposition of Rule 54 fees.

                                               E.

       Having found that the District Court did not abuse its discretion in granting either

PPL’s motion for Rule 11 sanctions or the Union’s motion for Rule 54 fees, we turn to


       24
          J.A. 1397.
       25
          Fed. R. Civ. P. 54(d)(2)(B)(i).
       26
          J.A. 1268.
                                               10
the amount of each fee award. On appeal, Russo does not challenge the District Court’s

lodestar fee and cost award calculations. Russo’s only challenge is that the District Court

did not adequately consider his ability to pay.

         This Court has held that monetary sanctions are meant to serve as a deterrent and

are inappropriate if they are so great that they are punitive.27 Given Russo’s history of

sanctions for similar conduct and the court’s previous “leniency because of his status as a

sole practitioner,” the District Court concluded that Russo’s “alleged financial

circumstances simply do not outweigh the need for adequate deterrence in this case.” 28

On appeal, Russo reasserts the same bare statement he made to the District Court—

namely, that he is a sole practitioner. We do not find that the awards amount to an abuse

of discretion, especially where Russo failed to present evidence of actual inability to pay

or that the sanctions would cause him to suffer undue hardship.

         Viewing the District Court’s determinations with substantial deference, as we

must, we conclude that it was not an abuse of discretion to grant PPL’s Rule 11 motion or

the Union’s Rule 54 motion in the amounts ordered.

                                              IV.

         For the reasons set forth above, we will affirm the District Court’s orders and final

judgment.


         27
              Doering v. Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 196 (3d Cir.
1988).
         28
              J.A. 1393.
                                               11
