121 F.3d 281 (7th Cir. 1997), 96-3559, Brasic v. Heinemann's Inc.

Docket Nº:96-3559.
Citation:121 F.3d 281
Party Name:Nellie BRASIC, Plaintiff-Appellant, v. HEINEMANN'S INC., Bakeries, Defendant-Appellee.
Case Date:July 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 281

121 F.3d 281 (7th Cir. 1997)

Nellie BRASIC, Plaintiff-Appellant,


HEINEMANN'S INC., Bakeries, Defendant-Appellee.

No. 96-3559.

United States Court of Appeals, Seventh Circuit

July 30, 1997

Argued May 30, 1997.

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John F. O'Meara (argued), Park Ridge, IL, for plaintiff-appellant.

James A. Spizzo, Nancy M. Gerrity (argued), Vedder, Price, Kaufman & Kammholz, Chicago, IL, for defendant-appellee.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Nellie Brasic, while employed at Heinemann's Bakeries, slapped co-worker Nicholas Lemus in the face. Heinemann's prohibits its employees from assaulting one another or fighting on company property, conduct which, according to the "Rules and Regulations for Heinemann's Employees," will result in "immediate termination for a first offense." Brasic was terminated the same day. Her union filed a grievance on her behalf; Heinemann's upheld Brasic's termination.

After receiving the EEOC's Notice of Right to Sue, Brasic sued under Title VII of the Civil Rights Act of 1964 alleging that she had been a victim of sex discrimination. According to her complaint, Brasic was

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terminated for conduct for which Heinemann's would not have terminated a male employee. 1

In response to Brasic's allegations Heinemann's asserted what it termed a legitimate nondiscriminatory business reason for terminating Brasic--violation of the company's "no-hitting" rule--and moved for summary judgment. Brasic now alleges numerous instances where male employees were involved in fights and altercations and were not terminated. These reveal, she argues, that the distinguishing feature of her termination was that she was female. The overriding problem for Brasic is that she failed to properly set out these alleged facts to counter Heinemann's motion for summary judgment. Along with its motion for summary judgment, Heinemann's filed its statement of undisputed material facts setting out in numbered paragraphs, with specific page and paragraph cites, the facts supporting summary judgment. This procedure was in line with Local Rule 12(M). 2 In turn, in order to oppose Heinemann's motion, Local Rule 12(N) required Brasic to file a concise response to Heinemann's 12(M) statement with specific references to affidavits, parts of the record, and other supporting materials supporting her response. 3 Further, if she

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wished to submit additional facts which would require the court to deny Heinemann's motion for summary judgment, Brasic was required to file her own statement with the required supporting references. Brasic did neither. First, she filed a memorandum in opposition to summary judgment with no record cites, exhibits, or statements of fact. With leave of court, Brasic filed a "corrected" memorandum along with a rule 12(N)(3)(a) response to Heinemann's motion. But the district court "[did] not consider any of the facts stated in plaintiff's memorandum in response to defendant's motion for summary judgment that [were] not properly included and supported by citation to supporting materials in either the rule 12(M) statement of defendant or the rule 12(N) statement of the plaintiff." September 10, 1996, District Court Order. The court determined that:

The uncontested facts establish that defendant had policies, partly in writing and partly not in writing, that (1) any employee who hit another employee would be terminated and (2) termination would be imposed only if [the] alleged hitter admitted hitting the other employee or the alleged hittee's claim to have been hit by the alleged hitter was corroborated by one or more third parties to the incident. The facts properly established in the Rule 12(M) and (N) statements support defendant's contention that these policies were uniformly enforced.

Id. Accordingly, the district court entered summary judgment for Heinemann's.

Brasic filed a motion for reconsideration which the district court denied: "Based upon the 12(M) and 12(N) statements that were filed in this matter which, of course, are extraordinarily important in a motion for summary judgment, the Court is going to deny the motion to reconsider."

Brasic appeals, arguing that she "adequately responded to the facts asserted by the defendant pursuant to Local Rule 12(M)," and citing what she claims are multiple instances where the "no-hitting" rule was not applied to similarly situated male Heinemann's employees.

Of course we usually review an entry of summary judgment by construing the facts and inferences most favorably to the non-moving party. But where that party has not followed the local rules requiring a response, supported by appropriate citations to the record...

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