reflects his birth in Jamaica, a reading of his responses reveals his full understanding of the questions asked. Mr. Davis' own words establish that Mr. Marin provided clear notice to Mr. Davis that the union would not arbitrate his case. Mr. Davis cannot now disavow the admissions he made at his deposition that he was notified in August and September of 1991 that Local 1199 had declined to arbitrate his discharge.
"The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572 (2d Cir. 1991). In Miller v. International Telephone and Telegraph Corp., 755 F.2d 20 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985), the plaintiff, who was discharged from his job, sued his former employer for age discrimination. Summary judgment for the employer on the ground that the case was time-barred was affirmed by the Court of Appeals. In so doing, it held that plaintiff could not disavow his deposition testimony to create a dispute as to when he received notice of his discharge so as to avoid summary judgment on statute of limitations grounds. "This sworn admission . . . could not later be contradicted for the purpose of creating an issue of fact [with respect to] . . . the running of the statute of limitations . . . ." 755 F.2d at 24.
Nor does there exist any basis to equitably toll the statute of limitations in this case. In Demars v. General Dynamics Corp., 779 F.2d 95 (1st Cir. 1985), the First Circuit affirmed the dismissal, granted on a motion for summary judgment, of a § 301 case that was time-barred under the six month limitations period provided by § 10(b) of the NLRA. The plaintiff there, a terminated employee, contended that his union did not inform him that it would not pursue his grievance to arbitration. The court declined to find that the alleged failure to notify could amount to fraudulent concealment, but assumed arguendo, that if it did, the statute of limitations could not be tolled because plaintiff failed to show that he exercised due diligence in an effort to learn of the union's decision. In the instant action, Mr. Davis admitted at his deposition that he was told by a union representative that "they said they not taking to arbitration." Accordingly, there is no basis to hold that Local 1199 concealed its decision from plaintiff.
Defendants' motions for summary judgment are granted, as this hybrid § 301/duty of fair representation lawsuit is time-barred pursuant to § 10(b) of the NLRA. Because plaintiff's federal claims are dismissed, the pendent state law defamation claim is dismissed. Accordingly, the Clerk of the Court is directed to enter judgment in favor of the defendants.
Brooklyn, New York
July 11, 1994
David G. Trager
United States District Judge