Gesell v. Commonwealth Edison Co.
| Decision Date | 18 August 2003 |
| Docket Number | No. 02-3071.,02-3071. |
| Parties | LEONARD GESELL, ROBERT WOLFE, and LATHAN MONTGOMERY, for themselves and all others similarly situated, Plaintiffs, v. COMMONWEALTH EDISON CO., a corporation, and the COMMONWEALTH EDISON SERVICE ANNUITY COMMITTEE, Defendants. |
| Court | U.S. District Court — Central District of Illinois |
John A. Baker, Law Offices of James P. Baker, Springfield, IL, ATTORNEYS FOR PLAINTIFF.
Scott E. Gross, Max Fischer, Jessica K. Benenson, SIDLEY AUSTIN BROWN & WOOD, Chicago, IL, ATTORNEYS FOR DEFENDANT.
This matter comes before the Court on Plaintiffs Leonard Gesell and Lathan Montgomery's Motion for Class Certification (d/e 24).1 For the reasons stated below, Plaintiffs' Motion is DENIED.
Commonwealth Edison ("ComEd") is a large utility which provides electricity services to customers in northern Illinois. In the 1990s, ComEd had four large areas of business concentration: (1) customer service, (2) generation, (3) transmission, and (4) distribution. The generation section was divided into fossil fuel and nuclear generation sections. Plaintiffs Gesell and Montgomery were both employed in ComEd's fossil fuel division from 1981 through 1998. Both were employed at ComEd's Kincaid station ("Kincaid"), which was one of ComEd's ten fossil fuel generating stations.
In 1995, ComEd announced that it wished to sell its Kincaid and State Line fossil fuel stations. On April 17, 1996, ComEd announced that it had reached an agreement to sell both Kincaid and State Line. Kincaid was to be sold to Dominion Energy ("Dominion"), and State Line was to be sold to Southern Electric International. On February 28, 1998, the transfer of Kincaid to Dominion was completed.
Prior to the completion of the transfer of Kincaid to Dominion, the Kincaid bargaining unit employees were given three employment options. First, they could remain employed with ComEd and accept employment at a different ComEd facility. All Kincaid bargaining unit employees wishing to remain with ComEd were guaranteed positions at another ComEd fossil fuel station at the same rate of pay and benefits. Second, the employees could sever their employment with ComEd and seek a position with Dominion, the new owner of the Kincaid facility. Employment with Dominion was not guaranteed, but ComEd has presented evidence that most bargaining unit employees who sought employment with Dominion were hired. See Manning Dep, p 57. The third option available to bargaining unit employees was that they could sever employment with ComEd and choose not to seek employment with Dominion, i.e. retire. See Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, (d/e 25) ("Plaintiff's Memo") p. 4; and Defendants' Response in Opposition to Plaintiffs' Motion for Class Certification, (d/e 31) ("ComEd Memo") p. 4.
Bargaining unit employees who chose to sever employment with ComEd under the second or third options could elect early retirement under the ComEd Service Annuity System ("CSAS"), if they were eligible. The CSAS allowed early retirement once an employee was 50 years old and had at least 10 years of service with ComEd. CSAS, § 5.3. Under the terms of the CSAS, any eligible employee electing early retirement would be entitled to receive an Early Retirement Service Annuity. The Voluntary Separation Plan ("VSP") for bargaining unit employees included an "extended" early retirement option. That extended option allowed any bargaining unit employee who was not eligible for early retirement under the CSAS as of February 23, 1998, but who would become eligible on or before December 18, 1998, to "extend" employment through December 18, 1998 (or through the date that the employee became eligible for early retirement) and then participate in the VSP. See ComEd Memo, pp. 4-5.
Management employees had their own VSP. They were given the option of: (1) seeking other employment at ComEd within a specified period of time, although employment was not guaranteed; (2) severing employment with ComEd and seek employment with Dominion, even though employment was less certain for management employees than for bargaining unit employees; or (3) severing employment with ComEd and not seeking employment with Dominion. See Id., p. 5; Plaintiffs' Memo, p. 4, n. 3.
ComEd officials went to Kincaid several times to meet with the employees and discuss these options. Robert Manning, head of ComEd's fossil fuel division, said he had more than three meetings with ComEd employees. Manning Dep., (Pl. Ex. 1) p. 53. Stewart Kerr from the fossil fuel division's human resources department testified that there were approximately four different groups of meetings for bargaining unit employees and a similar number for management employees. Kerr Dep., (Pl. Ex. 2) pp. 28-29. The ComEd officials would meet with different groups of people, depending on their shifts and whether they were management or bargaining unit employees. Manning Dep., p. 50. Not all the meetings were divided between bargaining unit and management, but there were some meetings designated for each group. Id. p. 51. Other ComEd officials also attended these meetings. Kerr Dep., p. 30-31. There was no prepared speech for these meetings, and each meeting took different "twists and turns" depending on who attended the meeting. Id. pp. 28-29; Manning Dep., pp. 73-74. Sometimes after the meetings, smaller groups would come up to ask questions to the union leadership or to Manning. Manning Dep., p. 53.
Plaintiff Leonard Gesell testified that he recalled only two meetings attended by ComEd corporate officials. Gesell Dep., (Pl. Ex. 4) p. 75. Manning attended one, Kerr attended two, and Diane Bagoine, a ComEd pension representative, attended one meeting.2 Id. pp. 75-76. Both management and bargaining unit employees could attend the meeting with Manning and Kerr.3 Id. p. 80. Manning told the group that the package that was being offered was the best offer on the table, and there would be no better offer. Id. pp. 95-96. Manning implied that the other ComEd facilities might be sold later, but that the "first one out of the box," would get the best severance package. Id. pp. 97-98. To the best of his knowledge, Gesell attended all scheduled meetings with ComEd corporate officials. Id. p. 80. Ron Tanton, the head of the Kincaid facility, would frequently say at subsequent plant personnel meetings that the first one out of the box would get the best deal. Id. p. 102-03. The employees present at the personnel meetings when Tanton made these statements varied. Id. p. 104. It was after the meeting with Manning and Kerr that Gesell made his decision to sever employment with ComEd. Id. p. 86. Gesell's claims are based solely on things that certain people said, and not on any misleading written communication from ComEd. Id. p. 60.
Plaintiff Lathan Montgomery only heard Manning speak on one occasion. Montgomery Dep., p. 46. The fact that Montgomery worked a swing shift or was not working that day prevented him from attending the other meetings that Manning held. Id. Manning said that the option presented to them was the best one they would get, but Montgomery does not recall the exact words Manning used. Id. pp. 47, 55. He does not remember the names of any other ComEd officials that spoke at that meeting. Id. p. 47. Montgomery's complaint against ComEd is not based on any written document, but is based solely on what people told him "verbally." Id. p. 24.
Greg Moore, a former ComEd management employee who claims he was deceived into severing his employment, testified that there were numerous meetings with ComEd officials to discuss the VSP for management employees. Moore Dep., p. 50. A these meetings, Manning frequently said that "the first one out of the box" is the best one. Id. p. 55. Normally at these meetings there would be a question and answer session to discuss the severance options. Id. p. 54. There were also plant level meetings for management employees, and bargaining unit employees might also have attended some of these meetings. Id. p. 62-64. Some employees did not attend because of their shift assignment. Id. p. 62. After the daily meeting of management people, there were "breakout groups" where people had the opportunity to speak with Tanton one-on-one regarding their options. Id. p. 67. In his affidavit, Moore states that in determining which option to choose, he relied heavily on the representations made by Manning, Tanton and other high ranking officials. Moore Aff., (Pl. Ex. 35), ¶¶ 15, 19.
Plaintiffs have submitted affidavits of twenty-nine former ComEd employees who also severed employment with ComEd. The affidavit of each employee states he was repeatedly told by ComEd officials that employees were getting the best offer available. Each employee states that at a meeting held on December 1, 1997, that was open to all Kincaid employees, Manning stated that the package being offered to Kincaid employees was better than any package that would be offered to employees at other ComEd stations that might be sold in the future. See e.g., Affidavit of John W. Briggs, (Pl. Ex. 16) ¶ 13(a). Each employee states that Ron Tanton frequently said that "the first one out of the box will be the best and that the employees of other fossil stations would not receive as good of an offer. . . ." Id. ¶ 13(b). Tanton made this statement only a couple of days prior to the February 28, 1998, transfer date. Id. Each employee relied heavily on the statements made by Manning, Tanton, and other ComEd officials, and ultimately elected to sever employment with ComEd, based in large part on these statement. Id. ¶¶ 15, 16.
Following the transfer of Kincaid to Dominion, ComEd sold its remaining fossil fuel stations to a subsidiary of Southern California Edison. As part of the severance package for the remaining ComEd employees, ComEd instituted a "Rule of 60" as an...
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