Lubkeman v. Commonwealth Edison Co.

• Decision Date: 22 February 1995
• Docket Number: No. 93 C 4142.,93 C 4142.
• Citation: 877 F. Supp. 1180
• Parties: Arnold F. LUBKEMAN, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

877 F. Supp. 1180

Arnold F. LUBKEMAN, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.

No. 93 C 4142.

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

February 22, 1995.

Leon M. Despres, Thomas Howard Geoghegan, Robert Chuck Drizin, Despres Schwartz & Geoghegan, Chicago, IL, for plaintiff Arnold F. Lubkeman.

Julie O'Donnell Allen, Lisa D. Freeman, Sidley & Austin, Chicago, IL, for defendant Commonwealth Edison Co.

OPINION AND ORDER

NORGLE, District Judge:

Before the court is the motion of Defendant Commonwealth Edison Company ("ComEd") for summary judgment. For the following reasons, the motion is granted.

FACTS¹

Plaintiff Arnold F. Lubkeman ("Lubkeman") brings this lawsuit pursuant to 29 U.S.C. § 621, et seq. In his single-count complaint, Lubkeman alleges that ComEd terminated him due to his age rather than his qualifications. Lubkeman is a former employee of ComEd who occupied various positions with ComEd from May 14, 1973, until August 26, 1992, when he was terminated. At the time of his termination, Lubkeman was forty-four years of age.²

Lubkeman began his employment with ComEd on May 14, 1973, as a Helper, an entry level bargaining unit position. Lubkeman was initially assigned to the Mechanical Maintenance Department at ComEd's Zion Nuclear Generating Station. Between 1973 and 1984, Lubkeman progressed in the bargaining unit from Helper to "B-Man" to "A-Man." In September 1984, Lubkeman was promoted to an Engineering Assistant. The new position was designated as a pay grade five.

In addition to Lubkeman, six other Engineering Assistants worked on the Maintenance Department Staff: Ronald Placko ("Placko"), Paul Graessle ("Graessle"), Carl Gosch ("Gosch"), Charles Ginn ("Ginn"), Al Rasmussen ("Rasmussen") and Kenneth Cichon ("Cichon"). Between September 1984 and late 1987, Jim LaFontaine ("LaFontaine"), born in January 1948, was the Maintenance Staff Department Head, the supervisor for all seven Engineering Assistants.

During the period Lubkeman worked as an Engineering Assistant under LaFontaine, LaFontaine alleges that Lubkeman consistently ordered parts that were not in use at the Zion station and often failed to order the necessary parts. LaFontaine labeled Lubkeman "the worst performer on his staff because his writing skills were poor, he did not pay attention to detail, and his general attitude towards improving his performance was indifferent." In 1985, LaFontaine recommended that Lubkeman not receive a raise; despite these comments, however, Lubkeman received a one-half pay raise.

In late 1987, the Nuclear Division management redistributed the responsibilities of the Maintenance Staff to other departments. As a result, the Maintenance Staff was disbanded and the Engineering Assistants were reassigned. Contrary to LaFontaine's suggestions to superiors that Lubkeman be terminated at that time for poor performance, Lubkeman received a lateral transfer to work as a Procedure Writer³ in the Mechanical Maintenance Department. Lubkeman remained at pay grade five. Mark Hansen ("Hansen"), born in March 1948, became Lubkeman's new supervisor.

ComEd instituted a new "Performance Planning and Review System ("PPR") in 1988. Under the PPR, supervisors were to meet with each management employee under their supervision every six months to discuss the goals and expectations of the management employee. At the end of each year, the supervisor rated the employee's performance by assigning a number from one to nine.⁴ In Lubkeman's 1988 PPR, Hansen rated Lubkeman's performance between "needs improvement" and "unacceptable performance" because of Lubkeman's careless and incorrect performance of his duties.

In 1989, Hansen advanced to Senior Work Analyst and returned to the Mechanical Maintenance Department. Lubkeman accompanied Hansen in the move and was reassigned as an Engineering Assistant, a pay grade five position. He remained under Hansen's direction. Lubkeman was assigned to complete a variety of tasks, including coordinating TJM job sheets,⁵ coordinating mechanical maintenance technical manuals,⁶ and assisting mechanical maintenance work analysts. In 1989, Lubkeman received a PPR rating of "3," which equated to a below acceptable performance evaluation.

In 1990, Donald Cook ("Cook"), a Master Mechanic born in March 1947, became the department head for the Mechanical Maintenance Department and replaced Hansen as Lubkeman's supervisor. Lubkeman remained a pay grade five Engineering Assistant and was the only Engineering Assistant that reported to Cook. Cook developed a series of fifteen duties for Lubkeman to perform. In 1990, Cook gave Lubkeman a PPR rating of "4." However, Cook told Lubkeman, "You're doing a fantastic job. You've come a long way. Keep up the good work."

In the year-end meeting between Cook and Lubkeman, Cook requested that Lubkeman obtain a magazine rack for the Mechanical Maintenance Department break room and a mailbox for the union mechanics. Lubkeman followed company procedure, which required Lubkeman to make the request through the Office Manager, Karen Mahony ("Mahony"), wait until she processed the request, and wait until the product arrived. After three months passed, Lubkeman contacted Mahony and inquired as to the location of the product. Mahony informed Lubkeman that the request was being processed and there was nothing to be done to hasten the procedure. During this time, Cook made repeated queries as to where the magazine rack and mailbox were and each time Lubkeman explained that the procedure was lengthy and he reported that he would follow through. Cook considered the failure to follow through on the assignment to be unsatisfactory.

By 1991, Cook determined that Lubkeman poorly performed several of his duties, including failing to stock current departmental forms, failing to keep track of the perfect attendance records, and failing to prevent overdue commitments. Moreover, Cook determined that Lubkeman had great difficulty performing his "shift picking" duties. Due to several mistakes in the manner in which Lubkeman picked union members for shifts and overtime, Cook was forced to meet with union officials on several occasions. Further, Cook states that he met with Lubkeman at least six times to "coach" Lubkeman on his performance deficiencies. However, the performance problems continued to occur. In Lubkeman's 1991 performance evaluation, Cook deemed Lubkeman's performance in five of the fifteen different duties as "needing improvement" and "below fully meeting expectations." Lubkeman's 1991 PPR rating was "3," the lowest rating received by an employee within the Mechanical Maintenance Department.

After the 1991 PPR, Dave Loeber ("Loeber"), born in 1947, one year before Lubkeman, replaced Cook as Lubkeman's supervisor. Lubkeman remained as an Engineering Assistant and at pay grade five. Lubkeman was the only Engineering Assistant that reported to Loeber. Loeber states that he too became dissatisfied with the deficiencies in Lubkeman's performances. Loeber further claims that he met with Lubkeman on several different occasions. Due to the problems which Lubkeman exhibited, Loeber removed six duties from Lubkeman's task list, leaving nine. In Lubkeman's 1992 PPR rating, Loeber specified that Lubkeman's main need for improvement was his attention to detail. Loeber stated that he did not know Lubkeman's age when Lubkeman was under his supervision, and that age played no role in Loeber's PPR evaluation.

In the spring of 1992, ComEd faced several dire economic problems. ComEd was ordered by the Illinois courts to refund approximately $653 million dollars to its customers. Annual operating and maintenance costs rose by 25% between 1989 and 1991. Moreover, ComEd stock earnings drastically declined. In 1989, earnings were $2.83 per share. By 1991, the earnings were only 8 cents per share. ComEd's retained earnings declined by 1.38 billion dollars from 1989 to June 1992.

In response to the financial conditions and economic constraints, ComEd officers undertook several measures to reduce operating costs, including reducing the management work force by 1,250 positions. Station managers had discretion to identify positions for elimination and candidates for termination. After station managers made such decisions, senior managers in the nuclear business unit and a review committee would review the decisions.

Thomas Joyce ("Joyce") was the Station Manager for the Zion Nuclear Generating Station. Senior ComEd officials instructed Joyce to specifically identify positions to eliminate and identify candidates for involuntary termination. In making these determinations, ComEd instructed Joyce that no employee within two years of retirement could be involuntarily separated and that no employee who had been promoted from the bargaining unit to management within the last three years could be involuntarily separated. With the assistance of his "direct reports," Joyce reviewed the work performed at the Zion Station to determine which jobs and tasks could be eliminated. Moreover, the group reviewed PPR ratings for the entire management roster, identifying those with poor or marginal performance rankings as well as those persons with acceptable rankings but who were in a job designed to meet their limited abilities. The names of these people were included as a part of a single list. Lubkeman's name was on this list.

Several supervisors in ComEd's hierarchy reviewed the list. After the list was reevaluated and re-ranked, the list was submitted to Cook, who provided the names of the employees with the five lowest PPR's to higher management personnel. Lubkeman was the lowest rated employee and the weakest performer in the entire Mechanical Maintenance Department.

The list from the Mechanical Maintenance Department was assimilated with lists from other departments to form a separation list. Employees from this list were to be terminated. Kurth prepared a ...