Linda S. Zehrung v. United Auto Workers Local 663

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App.
P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2008 *
Decided March 13, 2008
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 07‐3264
LINDA S. ZEHRUNG,
Plaintiff‐Appellant,
v.
UNITED AUTO WORKERS LOCAL 663,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianappolis Division.
No. 1:04‐cv‐0056‐RLY‐WTL
Richard L. Young,
Judge.
O R D E R
Linda Zehrung worked for United Auto Workers Local 663 as a janitor. After she
failed to return to work within five days following the end of her sick leave, Local 663 fired
her. Zehrung sued Local 663 alleging, among other things, that she was fired for exercising
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3264 Page 2
her right to health insurance and disability benefits in violation of Section 510 of the
Employee Retirement Income Security Act. 29 U.S.C. § 1140. The district court granted
summary judgment for the defendants and Zehrung appeals. We affirm.
Zehrung began working as a full‐time janitor for Local 663 in 1986. Her employment
was covered by the collective bargaining agreement between Local 663 and the Office of
Professional Employees International Union (OPEIU). In late 2002 Local 663 began to suffer
financial problems and reduced the janitor position to part‐time. The change resulted in a
reduction of benefits, including the elimination of sick‐leave benefits. Local 663
nevertheless allowed Zehrung, who was on sick leave at the time, to continue to receive
benefits for her then‐current sick leave. While Zehrung was on sick leave, her claim for
short‐term disability benefits was denied. Still, Local 663 allowed Zehrung to remain on
sick leave, without benefits, after Zehrung’s doctor submitted a letter stating that Zehrung
was too ill to return to work.
In September 2003 Zehrung’s doctor wrote that she would be able to return to work
on “Approx 10‐22‐2003.” Local 663 continued her sick leave until October 22, 2003, when
she was expected to return to work. But she did not show up at work on October 22, 2003,
nor did she contact Local 663 to explain her absence. The collective bargaining agreement
between OPEIU and Local 663 required that an employee lose seniority for “Failure to
report to work within five (5) working days following termination of leave‐of‐absence.”
When Zehrung had still not returned to work as of October 28, 2003, Local 663 notified
OPEIU that Zehrung had lost seniority and would be terminated as required by the
collective bargaining agreement. The next day, Zehrung’s doctor faxed a new disability
form to Local 663 stating that Zehrung’s sick leave should be continued until November 23,
2003. Local 663, however, disregarded this notice because it had already determined that
Zehrung had violated the collective bargaining agreement. OPEIU filed a grievance against
Local 663 on behalf of Zehrung, and the arbitrator found in favor of Local 663.
Zehrung then filed suit in the district court, alleging in her amended complaint that
Local 663 terminated her employment in violation of Section 510 of ERISA. Local 663
moved for summary judgment, submitting, among other things, the declaration of the
President of Local 663 establishing that he terminated Zehrung’s employment due to her
failure to return to work within five days of the end of her sick leave. In accordance with
local rules of the Southern District of Indiana, Local 663 informed Zehrung that Local Rule
56.1 required her to submit a statement of genuine issues of fact in response to its motion for
summary judgment.
Zehrung responded to Local 663’s motion for summary judgment by filing an
“Appendix of Declarations and Exhibits.” This appendix included, among other things, the

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No. 07‐3264 Page 3
declaration of Carla Winstead, an elected official for OPEIU, stating that Local 663 used the
wrong date to start counting the five days following the end of her sick leave. According to
Winstead, this would make Zehrung’s submission of her doctor’s extension of her sick
leave, dated October 29, 2003, timely for continuing her leave. Zehrung did not, however,
submit a statement of genuine issues of material fact as required by Local Rule 56.1.
The district court granted summary judgment for Local 663. The court reasoned that
Local 663 had a legitimate, non‐pretextual reason for terminating Zehrung that was not
related to her benefits, and therefore summary judgment was appropriate. In granting
summary judgment, the district court accepted Local 663ʹs statement of undisputed facts as
true because Zehrung failed to comply with Local Rule 56.1.
Before we can address the district court’s grant of summary judgment, we must first
determine whether the district court abused its discretion when it deemed admitted Local
663’s statement of material facts. We have repeatedly held that local rules may be strictly
enforced, and a district court does not abuse its discretion when imposing a penalty for a
party’s non‐compliance with local rules. See Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.
2006); Cichon v. Exelon Generation Co., 401 F.3d 803, 810 (7th Cir. 2005). Local 663 advised
Zehrung in writing of the consequences of not complying with Local Rule 56.1, and the
magistrate judge reiterated the importance of compliance to Zehrung in person. And so, we
conclude the district court did not abuse its discretion in strictly applying Local Rule 56.1,
and we limit our review to defendant’s statement of facts not in dispute, though we still
construe those facts in the light most favorable to Zehrung.
Turning to the merits of the appeal, we review a grant of summary judgment de
novo, drawing all inferences in favor of the non‐moving party. See Breneisen v. Motorola,
Inc., 512 F.3d 972, 977 (7th Cir. 2008). Summary judgment shall be granted where there are
no genuine issues of material fact and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986).
Zehrung claims that Local 663 violated Section 510 of ERISA when it terminated her
employment because it did so, according to Zehrung, for the purpose of preventing her
from taking advantage of disability benefits she would otherwise have had available.
Section 510 of ERISA makes it unlawful for an employer to discharge employees for
exercising their right to benefits. 29 U.S.C. § 1140. To prevail under Section 510, the
employee must prove the employer had the requisite specific intent, in other words, that the
adverse employment action was executed for the purpose of depriving the employee of
benefits. See Isbell v. Allstate Ins. Co., 418 F.3d 788, 796 (7th Cir. 2005). Our inquiry ends,
however, when a defendant proffers a legitimate reason for the employment action that is

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No. 07‐3264 Page 4
unrelated to depriving the employee of benefits, unless the employee can show that the
proffered reason is a pretext for improperly denying benefits. See id.
Local 663 contends that it fired Zehrung due to her failure to report to work within
five days following the termination of her sick leave, per the collective bargaining
agreement. Because Zehrung did not comply with Local Rule 56.1, we are limited to Local
663’s version of undisputed facts. As Local 663’s explanation is a legitimate basis for
terminating Zehrung’s employ, unrelated to depriving her of benefits, the district court
properly granted summary judgment because Zehrung offered no evidence showing this
was pretextual. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir. 1998) (holding
summary judgment properly granted on Section 510 claim where defendant argued it
terminated employee for excessive absenteeism and tardiness). Even if the district court
had addressed Zehrung’s version of the facts, summary judgment still would have been
appropriate. Zehrung contended that Local 663 miscounted the days following the end of
her sick leave and argues that she submitted her medical form in time to extend her sick
leave. But this argument establishes only that Local 663 may have made a mistake; it does
not suggest that the proffered reason for terminating Zehrung was a lie or pretextual. See
Bannon v. Univ. of Chicago, 503 F.3d 623, 631‐32 (7th Cir. 2007).
AFFIRMED.

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