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ELGUINDY v. COMMONWEALTH EDISON CO.

October 16, 1995

HODA ELGUINDY, Plaintiff,
v.
COMMONWEALTH EDISON COMPANY, Defendant.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Hoda Elguindy ("Elguindy") sues Defendant Commonwealth Edison Company ("ComEd"), alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Specifically, Elguindy alleges that ComEd failed to promote her to a supervisory position because of her age and retaliated against her for filing this lawsuit. Before this Court is ComEd's Motion for Summary Judgment. For the reasons set forth below, Defendant's motion is denied.

 Background

 On September 19, 1990, ComEd hired Elguindy to work as a Level 7 Engineer in its Nuclear Chemistry Services Department. *fn1" Elguindy was 41 years old at the time. Pl.'s Facts P 6. The Nuclear Chemistry Services Department works with ComEd's nuclear operating stations in reducing, storing, and removing radioactive waste. Pl.'s Facts P 7, 10. Since the nuclear operating stations are not obligated to accept the assistance of the Department, they are treated as customers of the Department. Pl.'s Facts P 8, 9.

 ComEd contends that during the early part of Elguindy's career, some of the operating stations complained about her inflexibility and unwillingness to listen. Def.'s Facts P 13. Three station employees testified that they had various communication problems with Elguindy. Def.'s Facts P 13; Britt Dep. at 68-69; Forrest Dep. at 42-52; Geer Dep. 96-105. However, other stations indicated that they were pleased with her performance and appreciative of her efforts. Pl.'s Facts P 13, Ex. B; Ex. D. On her December 26, 1990, Performance Evaluation, Elguindy received a "fully meets expectations" rating, meaning her "performance and behavior consistently achieve[d] expected levels of performance. The quality and quantity of work performed meet the requirements of the position." Pl.'s Facts P 14, 15.

 The "Under Thirty-Five" List

 In April, 1991, Elguindy and other employees attended a meeting held by her immediate supervisor, Joseph Jirka. During that meeting, Jirka stated that ComEd had a program to encourage development of under-35-year-old employees for supervisory positions. Pl.'s Facts P 16; Def.'s Facts P 17, Ex. 5. As a result of that statement, Elguindy understood that she would be precluded from a supervisory position at ComEd. Elguindy Dep. at 157. ComEd asserts that Jirka was mistaken about the existence of such a policy at ComEd. Def.'s Facts P 16. Shortly after the meeting, Elguindy met with Jirka personally to discuss the "Under Thirty-Five" policy. At that time, Jirka and Elguindy discussed the policy, and although Jirka did not believe that the policy precluded Elguindy from a promotion, it is unclear whether Elguindy was made aware that the policy was no longer in effect. Pl.'s Facts P 17.

 Elguindy attended a ComEd affirmative action meeting in October, 1991. At that meeting, Elguindy again raised the question whether ComEd maintained a policy of not promoting individuals under 35 years of age to supervisory positions. Pl.'s Facts P 18. The instructor of the meeting told Elguindy that ComEd had no such policy. *fn2" Def's Ex. A; *fn3" Pl.'s Dep. at 162.

 From a review of the record, it is clear that ComEd had a management development program in place up until 1993. Such list was referred to as the "Under Thirty-Five" list, and later, the "Candidate Development List" or the "Promising Management Personnel Program" ("PMPP"). Def.'s Ex. 5. The description of the PMPP states:

 
The program is designed to provide enhanced attention by senior department personnel to those individuals who are early in their career at Commonwealth Edison and who seem capable of developing into department heads or other senior managers at Commonwealth Edison. . . . We will not inform individuals that they are included in the program. . . .
 
As can be seen from the change in criteria for the program, age is no longer important. The program is designed to provide senior management attention to promising management individuals who are in the early years of their career at Commonwealth Edison. We believe that after fifteen years at Edison, we can provide little more that will enhance the career of the individuals and they are then removed from this specific program.

 In addition, a description of the Program indicated that the list "will also serve as one of several sources of candidates for the Management Development Committee to use in developing lists of persons to be considered for high level positions." Pl.'s Ex. L. *fn4" Finally, names of individuals reaching the age of 35 were automatically removed from the list. Pl.'s Ex. L.

 In selecting individuals to the PMPP, ComEd used the following criteria: (1) having the potential to be a department manager; (2) being within the first 15 years of management career at ComEd; (3) performance in the top 20% of those individuals with less than fifteen years of experience at ComEd; (4) having been employed long enough to have a documented work history; and (5) having performed at superior level in comparison with his or her peers. Pl.'s Facts P 34.

 ComEd contends that these lists were merely tracking devices used by management to ensure that promising employees were exposed to many areas at the company. Def.'s Facts P 36. Although Elguindy admits that being included in the list did not guarantee a promotion, she asserts that the list did in fact lead to promotions. Pl.'s Facts P 36. The essence of Elguindy's claim is that since age was a criteria for inclusion in the PMPP, Pl.'s Facts P 35, which in turn lead to promotions, she was unlawfully passed over for any promotions.

 Elguindy's Performance Evaluations

 On November 8, 1991, Elguindy received her 1991 annual performance overall rating of "fully meets expectations." Pl.'s Facts P 19. The performance assessment of that review indicated that "there are problems [in] areas when she is required to maintain an awareness of other activities occurring which relate to her areas of responsibility, which is indicative of a communication problem. Station personnel as well as individuals within the department have commented on this." Def.'s Ex. 2 at 11. However, Elguindy did receive a "fully meets expectations" on the "feedback" section of the assessment. Pl.'s Ex. F.

 Elguindy also met with David Miller, Director of the Nuclear Chemistry Services Department, and Dennis Farrar, General Manager of the Nuclear Services division, to discuss her 1991 evaluation. Pl.'s Facts P 21. During that meeting, Miller told her that she did not receive a higher performance rating due in part to "the feedback we got, that she [Elguindy] has a communication problem." Def.'s Facts P 22, Pl.'s Dep at 169-70. *fn5" At that time, Elguindy expressed to Miller and Farrar her belief that she was being discriminated against because of her age. Pl.'s Facts P 22. Miller and Farrar agreed to investigate her concerns and meet with her again in one week.

 One week later, on January 14, 1992, Elguindy again met with Miller and Farrar. Elguindy was provided with examples of customer complaints in which they stated she had a communication problem. Pl.'s Facts P 23. Also at that meeting, Farrar told her that Chris Herzog, Elguindy's new immediate supervisor, would meet with her regularly to give her ...


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