Brasic v. Heinemann's Inc.

• Decision Date: 30 July 1997
• Docket Number: No. 96-3559,96-3559
• Citation: 121 F.3d 281
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 943, 71 Empl. Prac. Dec. P 44,882 Nellie BRASIC, Plaintiff-Appellant, v. HEINEMANN'S INC., Bakeries, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 281

121 F.3d 281

74 Fair Empl.Prac.Cas. (BNA) 943,

71 Empl. Prac. Dec. P 44,882

Nellie BRASIC, Plaintiff-Appellant, v. HEINEMANN'S INC., Bakeries, Defendant-Appellee.

No. 96-3559.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 1997.

Decided July 30, 1997.

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 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 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, to each uncontested fact asserted in the movant's 12(M) statement, the moving party's facts remain uncontested. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir.1995). Under rule 12(N), a failure to properly contest in the 12(N) statement material facts set out in the movant's 12(M) statement, constitutes a binding admission of those facts. Id. In such a case, we "depart from our usual posture of construing all facts in favor of the nonmoving party; rather we accept as true all material facts contained in [the moving party's] 12(m) statement." Id. (quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir.1994)). Accordingly, as did the district court, we accept as true all material facts contained in Heinemann's 12(M) statement that were supported by citations to the record but were not contested in accordance with rule 12(N). Thus we consider Heinemann's submitted material facts that are uncontested by "specific references to the affidavits, parts of the record, and other supporting material," Local General Rule 12(N)(3)(a), and we do not consider Brasic's additional facts that are not supported by similar references. Local General Rule 12(N)(3)(b).

The burden in this case rests on Brasic. In response to her accusation that she was terminated because she was female, Heinemann's submitted what it considered a legitimate, nondiscriminatory business reason for her termination. Under the McDonnell Douglas ⁴ burden-shifting approach, see, e.g., Bahl v. Royal Indemnity Company, 115 F.3d 1283, 1290 (7th Cir.1997), the burden shifted to Brasic to proffer some evidence supporting her contention that Heinemann's business reason was not true--that it was pretextual. "[T]he plaintiff always has the ultimate responsibility of proving that [s]he was the victim of intentionally discriminatory conduct by [her] employer." Id.

Brasic has failed to meet that burden for several reasons. In its 12(M) statement, with record references supported by citation to page and paragraph numbers, Heinemann's specifically set out that it has written rules and regulations. Brasic acknowledged receiving a copy of the regulations, which prohibit among other things assaulting an employee or fighting on company property. Any violation results in immediate termination on a first offense. pp 32, 34. Heinemann's further asserted that Brasic struck Lemus on the face, and that Brasic admitted she had done so. pp 43, 45. Lowell Lindholm, Heinemann's plant manager, made the decision to terminate Brasic because she had slapped Lemus; Brasic's gender played no role in that decision. pp 8, 56. A grievance meeting relating to Brasic's termination was held in Lindholm's office attended by Brasic, management, and union representatives. p 61. Following the grievance meeting, Brasic's gender also played no role in Lindholm's decision to uphold her termination. p 64. Heinemann's company records, prepared by Lindholm, show that Brasic was terminated for "fighting on company property" and because she "struck another employee." p 65.

As further evidence that its no-hitting rule was the legitimate business reason for Brasic's termination, Heinemann's submitted that in December of 1988, it discharged Brian Clark and Juan Taberes, both males, for fighting because they had been hitting each other on company property. para.p 42.

These facts are all material to the issue of whether Heinemann's had a legitimate business reason for terminating Brasic; uncontested they are definitive. Brasic argues they were not uncontested. If we look at Brasic's corrected 12(N) response we find the following: She admitted pp 8, 32, 33, 34, and 65. Cryptically, she asserted that p 45 was repetitious of p 45. Brasic contested p 56: "Paragraph 56 is false; Lindholm ultimately terminated the plaintiff but he did so under circumstances he would not terminate a male. (See all exhibits)." She similarly challenged p 64: "Despite what he heard at the hearing, Lindholm terminated the plaintiff; gender was the significant factor in his decision. (see all exhibits)." Finally, Brasic admitted p 42, "but affirmatively states that there were other males who struck others or fought other employees and did not get fired (See deposition of Caroline Seestadt Exhibit C; grievance report of Gregarion Gonzales and deposition of Davis Fair Exhibit I and affidavit of James McQuaid Exhibit M)."

The two volumes of exhibits that accompany this case are not numbered sequentially, but when placed together they constitute three-and-a-quarter inches of paper totaling roughly 750 pages. For Brasic to deny a paragraph of Heinemann's 12(M) statement with the direction to the court to "see all exhibits," does not approach 12(N)'s mandate. The rule requires specific references to affidavits and parts of the record, not to entire affidavits or, in this case, the entire record. In citing to everything ("all exhibits"), Brasic specifically cites to nothing. Brasic's response to paragraph 42 is only slightly more helpful. The exhibits cited (C, I, and M) total 148 pages, all but 2 of them deposition transcripts.

"It is not our task, or that of the district court, to scour the record in search of a genuine issue of triable fact. We rely on...