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June 12, 1995


The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff, Diane Lindemann, brings this wrongful discharge action against Mobil Oil Corporation ("Mobil") under Section 510 of the Employees' Retirement Income Security Act ("ERISA"), 29 U.S.C. ยง 1140. Defendant claims to have terminated plaintiff for cause, allegedly for her failure to perform the duties of her job as a result of, but not limited to, her excessive absenteeism. Plaintiff contends that her discharge violated Section 510 of ERISA because the absences in question were excused "sick days" taken in accordance with an ERISA-defined employee benefit plan administered by Mobil. Therefore, she claims that her discharge was an improper interference with her statutorily protected short term disability benefits. Defendant moves for summary judgment because the plaintiff failed to exhaust the administrative remedies provided for by the plan prior to filing this action. For the following reasons, the defendant's Motion for Summary Judgment is GRANTED.


 The facts in this case have been gleaned from the parties' Rule 12(M) and 12(N) Statements. *fn1" Plaintiff Lindemann was employed by Mobil for a continuous period of seventeen years that lasted until her termination on June 6, 1994. (Plaintiff's Rule 12(N) P 22/Additional Facts) During this time, Mobil administered an ERISA-defined employee benefits plan, which included a Separation Benefit Plan and a Disability Benefit Plan, which are described in the Summary Plan Description ("SPD"). (Defendant's Rule 12(M) P 2)

 As required by ERISA, the SPD explains the plan's Claims and Appeals Procedure. (Rule 12(M) P 3) An employee who feels she is entitled to benefits may send a written claim to her local Benefits Advisor or Employee Relations representative. (Rule 12(M) P 4) If the claimant is not satisfied with the resolution of her claim she may submit a written request for review to the Employee Relations Manager in her Profit Center. (Rule 12(M) P 7) Finally, if she still feels her claim was improperly denied, she may submit a written appeal to Mobil's Vice President, Administration. (Rule 12(M) P 9) The responses from Mobil to all of these claims must be returned to the claimant in writing within 60 days of her corresponding request. (Rule 12(M) PP 5, 8, 11)

 On June 6, 1994, the plaintiff's employment at Mobil was terminated in a letter which stated she was "unable to fulfill the duties and responsibilities of [her] job" as a result of her failure to be at work regularly and on time. (Letter from Lieb to Lindemann of June 6, 1994 at 2.) Plaintiff claims that all of her absences were taken pursuant to the employee benefits plan. (Rule 12(N) P 25/Additional Facts) Mobil contests this claim. *fn2" (Rule 12(M) P 25/Reply)

 On June 27, 1994, plaintiff filed a claim for benefits in the following letter captioned "Subject - Emp. Rights & Appeals":

I feel I am entitled to severance pay with Mobil Oil Corp. With 17 years of dedicated service and always rated FP on performance appraisals, I have been under 2 doctors care and because I called in sick to my Supervisor on May 31 & June 1 which was beyond my control to avoid, my supervisor J. Lieb when I reported to work on June 2 & June 3 refused to talk to me and on June 6th terminated my employment with Mobil Oil. I asked to talk to an E.R. advisor but was refused a phone call & told me to call from home. I called Bob Harrop, E.R. advisor when I got home and asked him questions and he said he would call me back but never did. Please look into the situation and advice [sic] me.

 (Letter from Lindemann to McLucas of June 27, 1994.) On August 12, 1994, R.D. Harrop, an Employee Relations Advisor, informed Lindemann in writing that he had reviewed her claim for entitlement to separation benefits, but found that she was not eligible because she had been discharged for cause. (Letter from Harrop to Lindemann of August 18, 1994) Plaintiff filed this action on August 18, 1994. (Rule 12(M) P 21)

 After filing this lawsuit, plaintiff requested that Mobil review her claim in a letter dated September 16, 1994. (Rule 12(M) P 17) The original denial of separation benefits was upheld on November 10, 1994. (Rule 12(M) P 18) She requested a final review of this decision on November 29, 1994. (Rule 12(N) P 26/Additional Facts) Mobil maintained that the plaintiff was not entitled to benefits under the plan in a writing dated February 1, 1995. (Rule 12(N) P 28/Supplemental Statement)


 A. Standard for Summary Judgment

 Summary Judgment is proper if the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material fact is present "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Only disputes over facts that might effect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. The moving party has the burden to "show" that there is no evidence supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Consequently, the evidence of the nonmovant must be believed, and all reasonable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255.

 However, the nonmovant cannot rest on its pleadings, but must show that there is admissible evidence which supports its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "The court may only consider evidence and statements that would be admissible at trial and that have probative force." Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 365 n.14 (7th Cir. 1987), cert. denied, 484 U.S. 820, 98 L. Ed. 2d 42, 108 S. Ct. 79 (1987). The nonmovant must "do more than simply show that there is some metaphysical doubt as ...

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