Gesell v. Commonwealth Edison Co.

216 F.R.D. 616, 31 Employee Benefits Cas. (BNA) 1345, 56 Fed. R. Serv. 3d 1109, 2003 U.S. Dist. LEXIS 16759, 2003 WL 22006300
CourtDistrict Court, C.D. Illinois
DecidedAugust 18, 2003
DocketNo. 02-3071
StatusPublished
Cited by8 cases

This text of 216 F.R.D. 616 (Gesell v. Commonwealth Edison Co.) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gesell v. Commonwealth Edison Co., 216 F.R.D. 616, 31 Employee Benefits Cas. (BNA) 1345, 56 Fed. R. Serv. 3d 1109, 2003 U.S. Dist. LEXIS 16759, 2003 WL 22006300 (C.D. Ill. 2003).

Opinion

ORDER

SCOTT, District Judge.

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 (“Kin-caid”), 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) (“Plaintiffs 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 [619]*619February 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., (PI. 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 [620]*620on 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.

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Bluebook (online)
216 F.R.D. 616, 31 Employee Benefits Cas. (BNA) 1345, 56 Fed. R. Serv. 3d 1109, 2003 U.S. Dist. LEXIS 16759, 2003 WL 22006300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gesell-v-commonwealth-edison-co-ilcd-2003.