Cichon v. Exelon Generation Co., L.L.C.

Decision Date21 March 2005
Docket NumberNo. 03-3724.,03-3724.
Citation401 F.3d 803
PartiesMichael C. CICHON, Plaintiff-Appellant, v. EXELON GENERATION COMPANY, L.L.C., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert C. Seldon (argued), Seldon & Associates, Washington, DC, for Plaintiff-Appellant.

Douglas A. Graham (argued), Chicago, IL, for Defendant-Appellee.

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Michael Cichon was employed as a "Unit Supervisor" for Exelon Generation Company at its Byron, Illinois, nuclear power plant, until he was removed from the position because Exelon believed that he lacked the necessary leadership qualities. A few weeks later, Cichon applied for a different position with Exelon at their Byron plant, as a "Turbine Project Manager," but was not hired because of his lack of leadership skills. Thereafter, Cichon filed suit against Exelon under § 215(a)(3) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., alleging that Exelon had removed him from his Unit Supervisor position and refused to hire him for the Turbine Project Manager position in retaliation for his having filed a prior lawsuit against Exelon under the FLSA.1 The district court granted summary judgment to Exelon, finding Exelon had offered legitimate, non-retaliatory reasons for its decision to remove him as a Unit Supervisor and declining to hire him as a Turbine Project Manager and went on to conclude that Cichon had failed to demonstrate that these reasons were pretextual. Cichon appeals, we affirm.


Cichon was employed at Exelon's Byron plant for fifteen years in various non-managerial positions until he transferred to a position as a Unit Supervisor in the plant's Operations Department ("OD") in 1998. As a Unit Supervisor, Cichon served as a mid-level manager and also assisted in the hands-on operation of the plant's two nuclear reactors. In January of 2000, management became concerned with Cichon's leadership and supervisory skills, and his repeated failure to follow plant procedures. On June 26, 2001 Cichon gave his supervisors further cause to question his leadership abilities and adherence to plant procedures when he performed poorly during a reactor shutdown. On that date, due to a mechanical malfunction, one of the reactors had to be shut down. Once a reactor is shut down, the "feedwater" pump2 that supplies feedwater to the core of the nuclear reactor temporarily discontinues functioning, requiring the use of an "auxiliary feedwater pump" to keep the feedwater flowing into the reactor core in order that the steam generator can continue to remove heat from the reactor core. When the reactor is brought back on line, the auxiliary feedwater pump is manually shut down once the main operating pump is functioning normally. Cichon's role in the process of bringing the reactor back on line was to order the auxiliary feedwater pump shut down when the main feedwater pump was operational. Cichon ordered the premature shutdown of an auxiliary pump before the main pump was ready to take over, a procedural gaffe that caused the auxiliary pump to restart unexpectedly. The error was serious enough that Exelon was forced to conduct an internal investigation into Cichon's premature restart of the auxiliary feedwater pump and file a report with the Nuclear Regulatory Commission. Cichon's poor performance in this critical and potentially hazardous situation resulted in his being formally reprimanded for failing to follow procedural guidelines and his being warned, in writing, that he needed to improve his performance, comply fully with Exelon's procedures and exhibit improved leadership on the job or he would be subject to further discipline, up to and including termination.

Because of Cichon's serious error and other problems at the plant caused by OD personnel failing to comply with plant procedures, the plant's upper management moved in to rectify the situation and directed a "re-alignment" of the OD through a "Leadership Assessment Process" ("LAP"). The LAP required all supervisory-level employees in the department to successfully complete a series of individual interviews in order to retain their positions.

On September 10, 2001, as part of the LAP Cichon was interviewed by an internal panel comprised of upper-level supervisors in the OD along with representatives from the Byron nuclear plant's human resources department. During the interview Cichon and other managers were asked a series of questions designed to ascertain whether they possessed the necessary leadership and behavioral skills that Exelon expected of its management-level employees. The questions were framed in a manner designed to gauge "competencies"3 in eleven different categories of "fundamentals."4 In order for Cichon to retain his position as Unit Supervisor, he was required to demonstrate to the interviewing panel that he was at least "competent" as opposed to "developmental" or only developmentally qualified. Upon completion of the interviewing process, the LAP panel tallied up the scores and determined that Cichon demonstrated the required competency in only three of the eleven categories. Accordingly, the panel concluded that although Cichon might be an "acceptable candidate [for the] short term [because he] has the technical ability to perform the job[, in the] long-term [he] does not possess the leadership abilities that provide a good motivational fit for the position." On October 1, 2001, after all the supervisory-level employees in the OD had been interviewed, the LAP panel met and rendered its final decisions as to those who qualified to staff the Unit Supervisor position. The committee determined that because Cichon had failed to meet the minimum competency requirements to qualify for a supervisory position he should be removed from his Unit Supervisor position.

Prior to the committee's determination, on September 25, 2001, Cichon had filed a lawsuit against Exelon under the FLSA, challenging the recent changes Exelon had instituted in its overtime pay scale for its management-level employees.5 On October 23, 2001, Cichon was officially removed as a Unit Supervisor. At that time, Cichon was advised that his removal was precipitated by several factors; his poor performance in his LAP interviews, his failure to follow the company's reactor start-up procedures in June of 2001 and his subsequent failure to "demonstrate[ ][a] behavior change toward embracing and institutionalizing standards and fundamentals."

After his removal as a Unit Supervisor, Cichon had, in accordance with Exelon's policy, sixty days to find another position within the company before he was subject to final termination.6 During this time period, Cichon applied for the "Turbine Project Manager" position after Mike Kelly, the individual in charge of the turbine projects at Exelon's Illinois plants, informed him that the position was open and even went further and informed Cichon that, in his opinion, he felt that he might be a "good fit" for the position.

Cichon, because of his technical qualifications, was chosen as one of the four finalists for the position. However, Exelon's management team sought to staff the position based on more than technical skills alone and was looking for candidates with superior leadership, behavioral and management skills. As part of the selection process, the candidates had to score well in two interviews before two separate panels of interviewers. The panelists were assigned to ask each of the interviewees a series of questions and, based on the applicants' responses, determine which one of the candidates possessed the superior leadership and behavioral skills required for the job. Cichon, along with three other employees participated in the interviews, and placed second out of the four candidates interviewed. Tim Nolan received the top score and was accordingly awarded the position, rather than Cichon or the other candidates who had scored lower.

Kelly, who had advised Cichon of the Turbine Project Manager opening, was one of the panelists who interviewed Cichon and the other candidates for the position. The record demonstrates that, along with his interviewing partner, Kelly scored Cichon lower than did the other team while rating him on identical criteria. Kelly stated in deposition testimony that although he learned of Cichon's having filed a FLSA lawsuit during the interview with Cichon, that knowledge did not affect how Cichon was rated, nor did it affect the interviewing teams' collective final decision to hire Nolan. Kelly further stated that Nolan was hired for the position rather than Cichon solely because Nolan achieved higher scores overall during the interview and rating process. Following Cichon's failure to obtain the Turbine Project Manager position, he applied for other positions with Exelon, and, on December 12, 2001, accepted a position as a dispatcher at a Joliet facility operated by a subsidiary of Exelon's parent company.

On May 13, 2002, Cichon filed his second suit against Exelon under the FLSA, alleging that Exelon's decisions to remove him from his Unit Supervisor position and not hire him for the Turbine Project Manager position were made in retaliation for his filing of the initial FLSA overtime pay lawsuit.7 After discovery, Exelon moved for summary judgment and also filed a document entitled "Statement of Uncontested Material Facts," as required pursuant to the United States District Court for the Northern District of Illinois' Local Rule 56.1. Cichon responded by filing a brief in opposition to Exelon's motion for summary judgment, and included with this filing a response to their "Statement of Uncontested Material Facts." In this document, Cichon addressed Exelon's proposed facts line-by-line and admitted some of the facts, but denied the accuracy of a large number of Exelon's statements of facts. Our...

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