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