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PERRY v. SHEET METAL WORKERS' NATIONAL PENSION FUND

September 29, 2004.

DONALD C. PERRY, Plaintiff,
v.
SHEET METAL WORKERS' NATIONAL PENSION FUND, Defendant.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Sheet Metal Workers' National Pension Fund's ("Fund") motion for summary judgment and motion to strike. For the reasons stated below, we deny both the Fund's motion to strike and its motion for summary judgment.

BACKGROUND

  In 1983 the union representing Plaintiff Donald C. Perry ("Perry"), Sheet Metal Workers' Local No. 73 ("Local 73"), began participating in the Fund which is a multi-employer pension plan. Accordingly, that year Perry began accruing hours of covered employment towards years of service. However, when reviewing Perry's record, the Fund concluded that records showed Perry failed to earn the requisite 435 hours of work during the 1984, 1985, 1986 and 1988, 1989, 1990, 1991, 1992, and 1993 plan years, resulting in a one year break in service during each of those years. The Fund concluded that since Perry had not attained vested status by 1988, the five consecutive one-year breaks in service from 1988 to 1993 caused Perry to incur a permanent break in service, which resulted in the loss of Perry's pension credit earned prior to that date, which amounted to fifteen years of credit. Perry was employed as a teacher at the Washburne Trade School ("Washburne") from 1983 to 1992, where he taught future sheet metal workers. Perry argues that the hours he worked at Washburne were improperly omitted from his pension hours, therefore causing him to lose credit for that time period and incur the one-year breaks in service.

  On April 9, 2003, the Fund denied Perry's appeal concerning his alleged break in service, which caused him to lose prior service credit. Perry subsequently filed a complaint in the instant action which alleges a violation of Sections 502 and 204(g) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. The Fund has filed a motion for summary judgment and a motion to strike affidavits and an appendix submitted by Perry in his answer to the Fund's summary judgment motion that indicate that Perry was an employee of the Sheet Metal Workers' Local No. 73 Apprentice & Journeymen's Training Fund ("Training Fund"). LEGAL STANDARD

  Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "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 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

  I. Motion to Strike

  The Fund has filed a motion to strike references in the answer to the instant motion and statement of additional facts. Perry refers to affidavits and an appendix submitted by Perry along with his answer to the Fund's summary judgment motion that indicate that Perry was an employee of the Training Fund while working at Washburne. Perry has provided affidavits signed by himself and William J. Wilk ("Wilk"). In their affidavits, both Perry and Wilk allege that when they were approached by Keith Switzer, a Local 73 contractor, to teach at Washburne, they were both specifically assured that they would not lose any prior credited years of pension service. Perry has also submitted pay stubs from 1985 to 1992, which constitutes most of the time in which he was employed at Washburne, which indicate that he was an employee of the Training Fund.

  The Fund argues that these documents were not presented to the Fund's appeals committee when it made its decision and therefore should not be considered by this court. The Fund claims that Perry argued in his appeal to the committee only that Washburne was a union-sanctioned entity sanctioned by the Training Fund, and that Perry did not argue that he was actually an employee of the Training Fund.

  We can review the determination of the Fund's appeals committee solely based upon the evidence presented before the committee at the time it made its determination. See Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 462 (7th Cir. 2001) (stating that "in evaluating a plan administrator's decision under an arbitrary and capricious standard of review, [a district court] should consider only the evidence that was before the administrator when it made its decision."). However, if an administrator is given notice that relevant documents exist, he cannot simply ignore documents and expect the district court to refuse to consider them simply because the administrator didn't read them. Id. at 462-63.

  In this case, the Fund claims that the affidavits and the pay stubs were not presented to the appeals committee when they made their decision. Perry indicated in his letter to the Fund dated January 30, 2003, that he was an employee of the Training Fund. In its decision the appeals committee failed to specifically address the issue of whether Perry was an employee of the Fund. The appeals committee cannot shield itself from considering evidence that was brought to its attention by the plaintiff employee. In Hess v. Hartford Life & Acc. Ins. Co. the defendant plan moved to strike the presentation by the plaintiff of a contract because the administrator did not see the contract before making his decision. Id. at 462. However, the Seventh Circuit noted in Hess that the "examiner had before him a letter from [the plaintiff's] attorney that made explicit reference to the contract and even quoted the relevant portions." Id. at 462. Even though the examiner was not provided a copy of the contract, the Seventh Circuit found it persuasive that he was aware of the contract's existence and "he easily could have obtained a complete copy through a simple phone call to [the plaintiff's] lawyer or to [the plaintiff's employer]." Id. The court also stated "the fact the examiner did not bother to read pertinent evidence actually before him cannot shield [the fund] from review." Id. at 462-63. Similarly, the same logic applies in the instant action, the appeals committee was sufficiently notified of the likely existence of Perry's pay stubs and the contentions made in his affidavit. In his January 30, 2003, letter to the Fund, Perry provided sufficient notice of his employment with the Training Fund while teaching at Washburne. In the sixth paragraph, he specifically mentions that his supplemental salary, recurring training salary, and night school pay were all provided by the Training Fund and specifically states that he was an employee of the Fund. Even if the pay stubs weren't submitted to the committee, the committee could easily have contacted the Training Fund and requested a copy of Perry's pay stubs, which may have played a pivotal role in their decision.

  Also, Perry's affidavit is nearly identical in content to his January 30 letter to the appeals committee. Nearly every statement Perry makes in his affidavit was made to the appeals committee in the letter, with the exception of paragraphs 7, 16, and 18. Perry essentially did introduce the statements in his affidavit to the appeals committee with his letter, with the exception of 3 paragraphs. Therefore, a motion to strike on the grounds that this information was not before the appeals committee would not be proper.

  Finally, the Fund's objection to the introduction of evidence indicating that Perry was an employee of the Training Fund is largely irrelevant since the Fund has admitted as much pursuant to Local Rule 56.1. In the Northern District of Illinois, parties must comply with Local Rule 56.1. Compliance requires "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." Local Rule 56.1 (a)(3). The statement of material facts is comprised of "short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record and other supporting materials relied upon to support the facts set forth in that paragraph." Local Rule 56.1 (a). The non-moving party is correspondingly obliged to submit "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon. . . . ." Local Rule 56.1 (b)(3)(A). The non-moving party may also file own statement of additional facts and the moving party must then respond. Local Rule 56.1 (a) & (b)(3)(B). The court will deem any fact admitted in the opponent's statement of facts unless the fact is properly denied by the opposing party. Local Rule 56.1(a) & (b)(3)(B). A denial is improper if the denial is not accompanied by specific references to admissible evidence or at least evidence that represents admissible evidence. Dent v. Bestfoods, 2003 WL 22025008, at *1 n. 1 (N.D. Ill. 2003); Malec v. Sanford, 191 F.R.D. 581, 585 (N.D.Ill. 2000) (stating in addition that "[t]he purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner: it is not intended as a forum for factual or legal argument."). Pursuant to Rule 56.1 any facts included in a party's statement of facts that are not properly denied by the opposing party are deemed to be admitted. Local Rule ...


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