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January 30, 2003


The opinion of the court was delivered by: Charles P. Kocoras, Chief District Judge


This matter is before the court on Defendants Exelon Corporation and Commonwealth Edison Co.'s (collectively referred to as "ComEd") motion for summary judgment on Plaintiff Mona Jankovich's ("Jankovich") age discrimination claim and on her ERISA claim. For the reasons stated below we grant the motion.


Plaintiff Mona Jankovich ("Jankovich") began working for ComEd in 1971. In 1993 she became a customer facilities engineer ("CFE") which required her to serve as the interface between ComEd's customers. The position also involved engineering projects and arranging work orders, permits, contracts, cost estimates and other details necessary for construction. In 1998 Jankovich transferred to the University Park office and Lee Hahs ("Hahs") was her immediate supervisor. In 1999 Hahs began to receive complaints from other ComEd employees regarding Jankovich's work performance. In December 1999 Hahs met with Jankovich to discuss her end of the year evaluation and Hahs informed her that she would be given a "B" rating which meant that she was meeting expectations. In January of 2000 ComEd decided to order reevaluations for all management employees under a heightened performance standard. ComEd ordered the reevaluation because there were many service interruptions in the summer of 1999 and there were too many high year end performance rating scores submitted in light of the clear deficiencies in performance for 1999. Hahs' supervisor, John Jamicich ("Jamicich"), told Hahs to reevaluate his subordinates. Hahs' decided that, under the heightened performance standard, Jankovich should receive a "C" rating because of the complaints he received indicating deficiencies in her work performance. As a result of the "C" rating, Jankovich was given a Performance Improvement Action Plan ("PIAP").

After the first half of 2000, Hahs recommended that Jankovich receive a two percent raise because she was complying with the PIAP. However, in the second half of 2000 Hahs again began receiving complaints regarding Jankovich's work performance. In October 2000, Hahs left Jankovich's department and Francisco Perez ("Perez") became her immediate supervisor. Perez also received complaints regarding Jankovich's performance and, on that basis and based on input from Hahs, he gave her a "C" rating for her performance in 2000. On February 6, 2001, ComEd informed Jankovich that she was terminated pursuant to an established ComEd policy which provides that employees who received two consecutive "C" performance ratings are subject to termination. Jankovich was 49 years old when terminated. Her complaint includes a claim alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and a claim alleging that ComEd terminated her employment to prevent her from receiving pension and severance benefits in violation of the Employment Retirement Income Security Act, 29 U.S.C. § 1140 ("ERISA § 510").


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole in a light most favorable to the non-moving party and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. ADEA Claim

The courts are not intended to serve as a "super-personnel department" that evaluates each and every decision made by an employer and determines whether the decisions were prudent and fair. Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997). The courts are empowered to determine whether an employer's conduct violates the law. Id. Thus, in the case before us we must focus on the issue of whether ComEd discriminated against Jankovich because of her age. It is not within our purview to decide whether, as a general matter, Jankovich was treated unjustly.

The ADEA precludes employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a)(1). In an ADEA case an employee can defeat a summary judgment motion utilizing the direct method of proof or by utilizing the indirect burden-shifting approach defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03 (1973). Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002). Jankovich does not have sufficient evidence to proceed under the direct method of proof and thus must turn to the indirect method. To defeat a motion for summary judgment in an ADEA case under the indirect approach the plaintiff must first establish a prima facie case by showing that: 1) he is a member of a protected class, 2) he was meeting his employer's legitimate work related expectations, 3) he "was subject to an adverse employment action," and 4) he was treated differently than similarly situated employees outside the protected class. Krchnavy, 294 F.3d at 875. If a plaintiff establishes a prima facie case, then the burden shifts to the employer to provide a "legitimate nondiscriminatory reason" for the adverse employment action. Id. at 876. If such a reason is supplied, then the employee must show that the reason is merely a pretext for unlawful discrimination. Id.

Jankovich has not shown that she met ComEd's legitimate work related expectations. There were complaints from coworkers and internal customers in 1999 and in 2000 indicating that her work was incomplete and inadequate. Neither has Jankovich shown that a similarly situated employee outside the protected class was treated differently. Jankovich claims that she was similarly situated with Anka Knezevic ("Knezevic") because they had similar job assignments. However, Jankovich has not shown that there were complaints about Knezevic's work performance as there were regarding Jankovich's work performance. Knezevic is not similarly situated merely because she has a similar or identical job description. ComEd claims as its nondiscriminatory reason for firing Jankovich that Jankovich was fired because of poor work performance.

To show a pretext, the plaintiff must establish that the given reason is a lie made by the employer to conceal its unlawful discriminatory intentions. Hasham v. Calfornia State Bd. of Equalization, 200 F.3d 1035, 1045 (7th Cir. 2000). A plaintiff can show a pretext by presenting "direct evidence that a discriminatory reason motivated the employer's decision or by presenting evidence that the employer's proffered reason is unworthy of credence, thus raising the inference that the real reason is discriminatory." Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir. 1997).

Jankovich first argues that the fact that she was initially told that she would receive a "B" rating and then, after the reevaluation, had the rating changed to a "C" rating is evidence of pretext. First of all, Jankovich offers no explanation as to why ComEd would wait until the reevaluation before it discriminated against her. If ComEd were going to unlawfully discriminate, then there is no logical reason why Jankovich would not have received a "C" rating to begin with. Changing the "B" rating to a "C" rating only drew more attention to the decision which ComEd would want to avoid if it was unlawfully discriminating. Jankovich claims that ComEd used the reevaluation as a cover to set quotas and force out older workers. She claims that during the reevaluation, ComEd pressured supervisors to artificially lower ratings so that they did not realistically reflect the actual work performances of the employees in order to meet the quotas. However, these claims are contrary to Jankovich's own admissions. Jankovich admits in her 56.1(b) responses that ComEd experienced performance problems in 1999 and that there were deficiencies in its service during the summer of 1999. She also admits that ComEd ordered the 1999 year end reevaluations because the ratings were too high based on the clear deficiencies in performance. She admits that ComEd decided to heighten the performance standards for the reevaluations so that the performance deficiencies in 1999 would be reflected in the ratings. Jankovich does not dispute that ComEd's intention in ordering the reevaluations was to have the supervisors ...

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