NOT PRECEDENTIAL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)
2

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.
3

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”)3against 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). 
4

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.
5

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 

 

6See 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.”).
6

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.
7

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.
8

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”).
9

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). 
10

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.
11

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.