Little v. Cox's Supermarkets

Decision Date29 November 1995
Docket Number95-1355 and 95-1903,Nos. 94-3683,s. 94-3683
Citation71 F.3d 637
PartiesMary Nell LITTLE, Plaintiff-Appellant, v. COX'S SUPERMARKETS, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

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 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 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 of that theory in this court." Teumer v. General Motors Corp., 34 F.3d 542, 546 (7th Cir.1994) (citations omitted). Little did not raise the issue of the adequacy of Cox's L.R. 56.1 filings with the district court, and thus this argument is waived. Even viewing the issue more broadly, however, we find no abuse of discretion. This court has repeatedly recognized the importance and usefulness of this and similar local rules throughout the circuit, 2 as well as "the exacting obligation these rules impose on a party contesting summary judgment." Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994) (and cases cited therein). Moreover, it is clear that the decision whether to apply the rule strictly or to overlook any transgression is one left to the district court's discretion. Id. at 923. A district court's interpretation of its own rule is accorded considerable deference by us. Id. at 923 n. 4 (citations omitted).

The district court, in its order granting Cox's motion for summary judgment, declared Cox's version of events "undisputed" in accordance with the terms of L.R. 56.1, but nevertheless assembled the facts and considered the elements of the prima facie case by drawing upon Little's Statement of Facts in her answer brief. Thus the court did not turn a blind eye to the facts elsewhere available, though it is permitted to do so by non-compliance with the local rule.

Furthermore, Little's claim that she was held to a "higher" procedural standard simply overlooks the allocation of burdens--and the important rationale--represented by summary judgment procedure and rules such as L.R. 56.1. These rules serve to notify the parties of the factual support for their opponent's arguments, but more importantly inform the court of the evidence and arguments in an organized way--thus facilitating its judgment of the necessity for trial.

The requirements of such rules are not onerous, but they are exacting. See Waldridge, 24 F.3d at 922-23. Local Rule 56.1 makes explicit the responding party's burden of controverting the movant's position with adequate citations to the record. While "the non-movant need not match the movant witness for witness," Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), there still exists the obligation of "demonstrating that there is a pending issue of material fact." Id. (emphasis supplied). Such a duty is usually more involved than that faced by the movant. General principles of advocacy suggest, and we have often repeated, that a party contesting summary judgment has a responsibility under such rules to "highlight which factual averments are in conflict as well as what record evidence there is to confirm the dispute." Id. at 922. It is reasonable to assume that just as a district court is not required to "scour the record looking for factual disputes," id., it is not required to scour the party's various submissions to piece together appropriate arguments. A court need not make the lawyer's case. We find the district court did not abuse its discretion in the manner in which it enforced its local rule.

B. Summary Judgment

Little also claims that the district court erroneously granted Cox's motion for summary judgment. We review this grant de novo, viewing all the evidence in the light most favorable to the non-moving party; summary judgment will be upheld if the record reveals no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986).

The statute at issue here, Sec. 510 of ERISA, states in pertinent part that "[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or...

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