Appeal from the United States District Court for the District of New Jersey; D.C. No. 89-05069.
Mansmann, Hutchinson, and Weis, Circuit Judges.
In this appeal we decide that a plaintiff's affidavit contradicting his prior deposition testimony does not create a factual dispute barring summary judgment. We also conclude that plaintiff's counsel's decision to press her client's position with the court did not constitute bad faith under 28 U.S.C. § 1927, despite the unlikelihood of success. Accordingly, we will affirm the entry of summary judgment against plaintiff, but will reverse the award of sanctions against plaintiff's counsel.
Plaintiff, Dennis Hackman, was a member of defendant Local 575 of the Teamsters Union and was employed by defendant Valley Fair, Inc. until the company discharged him on May 23, 1989. He immediately filed a protest through Joseph DiLascio, the business agent for Local 575. On May 31, 1989, a grievance meeting was held. A representative of Valley Fair was present and plaintiff was represented by DiLascio. At the conclusion of the meeting, Valley Fair refused the plaintiff's request for reinstatement.
On December 4, 1989, plaintiff filed a hybrid suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, naming both Valley Fair and Local 575 as defendants. The complaint charged Valley Fair with unfair employment practices and the union with breach of its duty of fair representation. Defendants moved for summary judgment based on the six month statute of limitations defense set out in DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). Because the six-month period began to run when plaintiff received notice that the union would not proceed further with his grievance, it was important to determine when plaintiff first became aware of the union's refusal to assist him.
In his deposition, plaintiff admitted that DiLascio told him on May 31, 1989, or June 1, 1989, that the union did not intend to request arbitration, the next step in processing a grievance. Plaintiff also testified that on June 6, 1989, he asked DiLascio for a letter stating the union's position. DiLascio obliged and in a letter dated June 7, 1989, wrote that he declined to arbitrate because of the facts presented by the employer and the statements of three co-workers. After defendants moved for summary judgment, plaintiff filed an affidavit alleging that he was confused during the taking of the deposition. He also pointed out that the letter from the union did not assert a notification date earlier than June 7, 1989.
The district court rejected the plaintiff's attempt to contradict his deposition testimony and concluded that more than six months before filing suit on December 4, 1989, he had been notified that the union would not proceed with his grievance. Accordingly, the court granted summary judgment. The court further directed that defendants were to be paid attorney's fees. Both plaintiff and his counsel have appealed.*fn1
On appeal plaintiff contends that his affidavit alleging confusion at the deposition raised a question of fact preventing the entry of summary judgment. Of course, summary judgment is inappropriate when a conflict on a material fact is present in the record.
In this case, whether plaintiff was advised before June 4, 1989, that the union would not pursue his grievance is crucial because there is no dispute that the six-month statute of limitations set out in DelCostello is applicable. See Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990) ("The six-month period commences when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation. . . . [It] commences when the plaintiff receives notice that the union will proceed no further with the grievance."). The district court rejected the plaintiff's attempt to contradict the admissions he made in his deposition and, instead, accepted his testimony that he had been advised by DiLascio after the hearing on May 31, 1989, and on June 1, 1989, that the local union would not arbitrate his grievance.
When, without a satisfactory explanation, a nonmovant's affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists. "The objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit." Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir. 1988). In that opinion, we cited the decisions of six other Courts of Appeals supporting that conclusion.
Having carefully reviewed the plaintiff's deposition testimony as well as his affidavit, we are persuaded that the district court properly determined that there was no genuine issue of material fact. By his own admission, plaintiff was notified more than six months before the suit was filed that the union would not ...