71 F.3d 637 (7th Cir. 1995), 94-3683, Little v. Cox's Supermarkets

Docket Nº:94-3683, 95-1355 and 95-1903.
Citation:71 F.3d 637
Party Name:Mary Nell LITTLE, Plaintiff-Appellant, v. COX'S SUPERMARKETS, Defendant-Appellee.
Case Date:November 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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71 F.3d 637 (7th Cir. 1995)

Mary Nell LITTLE, Plaintiff-Appellant,


COX'S SUPERMARKETS, Defendant-Appellee.

Nos. 94-3683, 95-1355 and 95-1903.

United States Court of Appeals, Seventh Circuit

November 29, 1995

Argued May 10, 1995.

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Michael J. Cork (argued), Indianapolis, IN, for Plaintiff-Appellant.

John R. Maley (argued), Barnes & Thornburg, Indianapolis, IN, Robert J. Maley, Harrington, Maley, Garnder & Sayre, Richmond, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and WOOD, Jr. and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Mary Nell Little, plaintiff-appellant, brought this action against her former employer, Cox's Supermarkets (Cox's), alleging that her discharge was due to Cox's desire to terminate her employee benefit plan rights in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001 et seq. Little also brought a supplemental claim of defamation under the laws of Indiana. Cox's responded with a state law counterclaim for conversion. The district court entered summary judgment in favor of Cox's on the ERISA claim and declined to exercise jurisdiction on the state law claims. The district court also assessed costs and a small portion of Cox's attorney's fees against Little and her counsel pursuant to the ERISA statute. Little appeals both the summary judgment and cost and fee awards. We affirm.


Mary Nell Little began employment as a cashier for Cox's Supermarkets in Richmond, Indiana in 1974. She worked for this small chain in various locations as both a cashier and courtesy office clerk. She was retained as a full time employee, with retirement and health insurance benefits, despite working less than the requisite number of hours per week for substantial periods. Cox's was

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aware that her husband, the late Al Little, 1 suffered from severe health problems and that the couple relied on Little's health insurance coverage. The premium for this coverage was shared equally by Little and her employer, amounting to a weekly payment of $55.70 each. The health plan, in turn, paid for her husband's medical expenses, which totalled approximately $170 per month.

On November 4, 1991, three cashiers reported to Cox's office manager, Janice Anderson, that they suspected Little of stealing merchandise--namely, panty hose and a turkey. Anderson notified the store manager, Fornie Benge. Four days later, on November 8, Little used her break time to select three dry-good items from the shelves, which she brought to the front of the store and placed on an open register. She then selected three steaks and put them in the store's office. Two cashiers observed Little with the steaks and reported the matter to Steve Ross, the night manager, who phoned Benge at home. Benge returned to the store and examined the office. Little then gathered her purchases from their separate locations and paid for them. Following this Benge confronted Little and asked to see her receipt, which she produced. Benge thereupon informed her that he would have to let her go for theft, mentioning in particular the previous reports regarding the turkey. Upon Little's request, Benge phoned the store's vice president, Richard Cox, who declined to speak with Little and who concurred in Benge's decision. Little's employment was thus ended.

Little brought suit in March, 1993, alleging that her termination was pretextual for the purpose of interfering with her rights under Cox's employee benefit plans in violation of Sec. 510 of the ERISA statute, 29 U.S.C. Sec. 1140. The district court applied the appropriate burden-shifting analysis and concluded that Little had not established a prima facie case of discrimination, nor supported her claim that the reason given was pretextual. Accordingly, the court entered summary judgment in favor of Cox's. On Cox's motion entered in accordance with ERISA's fee-shifting provision, 29 U.S.C. Sec. 1132(g)(1), the court awarded to Cox's the costs of the action plus a small portion of attorney's fees ($1000). Little now appeals both the summary judgment and cost and fee orders.


A. Application of Local Rule 56.1

Little first contends that the district court abused its discretion by holding her to a "higher procedural standard" than that applied to Cox's regarding its local rule for summary judgment motions. The rule in question, S.D.Ind.L.R. 56.1, provides that a party moving for summary judgment must file a "Statement of Material Facts," supported by appropriate citations. The opposing party must then file any material controverting the movant's position, "together with an answer brief that shall include ... a 'Statement of Genuine Issues' setting forth, with appropriate citations ... all material facts." S.D.Ind.L.R. 56.1.

The rule states that in determining the motion for summary judgment, the district court will assume that the facts as claimed and supported by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues" filed by the opposing party. See S.D.Ind.L.R. 56.1.

In this case, Cox's, as movant, filed its factual assertions, together with appropriate citations, but mistitled the document "Proposed Undisputed Facts." Little's response, however, consisted of a "Statement of Genuine Issues" in the form of a list of questions only. In this document, no effort was made to identify precise factual issues or to controvert Cox's statements, and no indication was given as to where corresponding evidence in the record might be found. Little points to the "Statement of Facts" found elsewhere in her answer brief, which contained citations to the record, and urges that the district court should have considered this document in its determination of whether issues existed for trial. She opines that Cox's mistitled submission

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was accepted for this purpose, and therefore she is due equal flexibility since neither party complied fully with L.R. 56.1.

It is generally held that a "failure to draw the district court's attention to an applicable legal theory waives pursuit...

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