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Rupcich v. United Food & Commer. Workers Int'l Union Local 881

United States District Court, N.D. Illinois, Eastern Division

September 29, 2014

PATRICIA RUPCICH, Plaintiff,
v.
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL 881, and JEWEL FOOD STORES, INC., Defendants

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For Patricia Rupcich, Plaintiff: Neal Charles Zazove, LEAD ATTORNEY, Johanna Rose Stein, Neal C. Zazove & Associates, PC, Chicago, IL; Franklin Zachary Wolf, Neal C. Zazove & Associates, Chicago, IL.

For United Food and Commercial Workers International Union, Local 881, Defendant: Jonathan D. Karmel, LEAD ATTORNEY, Alexander George Barney, The Karmel Law Firm, Chicago, IL.

For Jewel Food Stores, Inc., Defendant: Michael A. Warner, Jr., LEAD ATTORNEY, Franczek Radelet PC, Chicago, IL; Abizer Zanzi, Franczek Radelet, Chicago, IL.

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MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, United States District Judge. Magistrate Judge Gilbert.

As grocery store receiving clerk Patricia Rupcich (" Rupcich" ) was leaving work one day, she walked directly from the back room pushing a grocery cart containing her personal items, a lunch she had previously purchased at the cash register, and a twenty-five-pound bag of birdseed. After she clocked out in the front of the store and headed for the exit, a security guard standing by the front door asked her for a receipt for the items in her cart. Because she did not have a receipt for the birdseed, she was suspended and then terminated. Her Union filed a grievance, but after her employer denied the grievance, the Union chose not to pursue the grievance to arbitration. Rupcich has sued United Food and Commercial Workers International Union, Local 881, (" the Union" ) for breach of the duty of fair representation pursuant to section 301 of the Labor Management Relations Act (" LMRA" ), 29 U.S.C. § 185 and Jewel Food Stores, Inc. (" Jewel" ) for breach of the collective bargaining agreement in place between the Union and Jewel, as well as defamation. The parties have cross-moved for summary judgment. For the reasons provided herein, the Court grants the Union and Jewel's summary judgment motions and denies Rupcich's cross-motions.

Local Rule 56.1

In this district, motions for summary judgment are governed by Local Rule 56.1. " The obligation set forth in Local Rule 56.1 'is not a mere formality.' Rather, '[i]t follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial.'" Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)). The Seventh Circuit has " routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions." Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011) (quotation omitted).

Local Rule 56.1(b)(3)(B) requires the nonmovant to file a " concise response to the movant's statement that shall contain ... 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." LR 56.1(b)(3)(B). These responses should not contain " irrelevant information, legal arguments, [or] conjecture." Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006). Where a litigant fails to comply with such rules, the district court may " choose[] to ignore and not consider the additional facts that a litigant has proposed." Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005).

Facts[1]

Rupcich worked at the Jewel grocery store located at 3940 E. 106th Street in Chicago, Illinois, as a receiving clerk. Jewel's LR 56.1(a)(3) Stmt. of Facts (" JSOF" ) ¶ 25. As part of her employment at Jewel, Rupcich was a member of the Union. Rupcich's LR 56.1(b)(3)(C) Stmt. of Facts (" RSOF" ) ¶ 8. The employment

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of the Union members, including Rupcich, at Jewel were governed by a collective bargaining agreement entitled " Local 881 UCFW Contract 2010-2013 Jewel Food Stores, Inc. Chicagoland," effective January 24, 2010-January 26, 2013 (the " CBA" ). Id.

On January 19, 2012, at approximately 12:15 p.m., Rupcich was close to finishing her shift at Jewel when she received a telephone call from her husband. RSOF ¶ 10; JSOF ¶ 26. Rupcich's husband, who was babysitting their grandchildren, reported that one of the grandchildren was coughing and her husband needed her assistance. RSOF ¶ 10. One of Rupcich's duties that day had involved restocking large bags of birdseed.[2] Id. ¶ 11. When Rupcich headed out of the store, she was pushing a shopping cart containing her personal belongings. Id. It is undisputed that her cart also carried a twenty-five pound bag of birdseed that, Rupcich contends, was intended to be restocked. JSOF ¶ 26, Rupcich's Resp. to JSOF ¶ 26. Rupcich had not purchased the birdseed and had no receipt of purchase. JSOF ¶ ¶ 26, 27.[3]

Rupcich pushed her cart toward the store's exit, past the point of sale. Id. ¶ 26. Jewel Loss Prevention Associate Gregory Young (" Young" ) was standing at the exit to the store before the breezeway. Id. ¶ 27. Young asked to see Rupcich's receipt for the birdseed. Id. According to Rupcich, at that point, she realized her mistake, apologized, and acknowledged that she was not to leave the store with unpaid store product or to have unpaid store product at the location at which she was stopped. Id. ¶ 28. Rupcich returned the cart and birdseed to the wall by the service desk and left with her personal belongings. Id. ¶ 29. Young reported the incident to Jewel Loss Prevention Manager Marty Oppenhauser (" Oppenhauser" ). Id. ¶ 30.

On January 23, 2012, Jewel suspended Rupcich pending an investigation. Id. ¶ 31. When Rupcich was suspended, she called Marcella Robinson (" Robinson" ), her Union Representative, to report the suspension and explain her side of the story. Union's Local Rule 56.1(a)(3) Stmt. of Facts (" USOF" ) ¶ ¶ 12, 14. Robinson quickly followed up with a phone call to the Store Manager, Raymond Ulatowski (" Ulatowski" ), to request information regarding Rupcich's suspension. Id. ¶ 16.

Oppenhauser conducted an investigation on Jewel's behalf. JSOF ¶ 32. As part of the investigation, Rupcich provided a voluntary statement, in which she admits she pushed the shopping cart with the bag of birdseed past the point of sale. Id. Rupcich's statement explained that she had forgotten that she had the merchandise in her cart. Id. John Novosel (" Novosel" ), an associate relations representative for Jewel, reviewed ...


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