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September 18, 2003


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


This matter comes before the court on Defendant Exelon Generation Company's motion for summary judgment. For the reasons set forth below, the motion is granted.

BACKGROUND*fn1 [ Page 2]

Exelon Generation Company ("Exelon") is a subsidiary of Exelon Corporation and operates five nuclear power plants in Illinois. Plaintiff Michael Cichon ("Cichon") began working at Exelon's plant in Byron, Illinois ("Byron Plant") around 1983. Cichon worked in various positions at the Byron Plant, advancing over the years. In February 1998, Cichon obtained the lower-level managerial position of Unit Supervisor for the plant's Operations Department. The Operations Department is responsible for running the Byron Plant's control room. As a Unit Supervisor, Cichon was responsible for supervising and directing the operations of the plant's twin nuclear reactors. This entailed giving directions and orders to the reactor operators, who would physically manipulate the reactors' controls pursuant to Unit Supervisors' directions. In 2001 there were approximately twenty Unit Supervisors at the Byron Plant.

In June 1999, the Byron Plant changed its overtime pay practices for certain employees in managerial positions. Displeased with these overtime policy changes, twenty-seven Byron Plant employees filed a charge with the Illinois Department of Labor and forty-two employees instituted a federal lawsuit. Cichon was aware of both of these actions but chose to join neither. However, Cichon also disapproved of the [ Page 3]

new overtime policies and shared his views with certain coworkers. On May 10, 2001, unbeknown to Exelon, Cichon paid an attorney a retainer to prepare to file a separate class action lawsuit concerning the overtime changes.

Even though he had ascended the ranks at the Byron Plant for over fifteen years (the Unit Supervisor job was his first managerial position), beginning in early 2000 Cichon's supervisors started questioning his leadership and supervisory capabilities. On numerous occasions between January 2000 and October 2001, Cichon was coached by supervisors who expressed their opinions concerning his managerial practices, specifically that he was more closely aligned with his subordinates than with management. Cichon also frequently questioned directives from management in front of his subordinates, leading his immediate supervisor to coin the acronym "N.E.I.B.S" (Not Everything Is Bull Shit) and use the term as a retort to Cichon's negative comments.

An example of a particular incident that caused Exelon supervisors to criticize Cichon's leadership occurred on June 26, 2001. Cichon was the Unit Supervisor in charge of one of the Byron Plant's nuclear reactors when a malfunction occurred that required that reactor to be shut down. During the reactor restart process, Cichon failed to follow certain procedures that, while never endangering the plant or public, required Exelon to conduct an internal investigation and prepare a report for the Nuclear [ Page 4]

Regulatory Commission ("NRC"). This incident resulted in the Byron Plant having to reset its "Event Free Clock" with the NRC. On August 7, 2001, Exelon issued Cichon a formal written warning concerning his failure to adhere to procedural guidelines. The warning stressed that Cichon needed to improve his performance and that "failure to do so will result in additional discipline up to and including termination." Pl. Ex. 18 at 0030.

Based on the reactor shutdown and other problems, in July 2001 Byron Plant management became concerned with performance and procedural adherence within its Operations Department. They felt it necessary to reevaluate the Operations Department's managerial team and initiated a top-to-bottom "re-alignment" of the department. This was accomplished through a leadership assessment process that was designed in part to evaluate those Operations Department employees in leadership and supervisory roles. The goal of the process was to improve safety and effectiveness by ensuring that proper supervisory personnel were in place. The leadership assessment included interviews of all supervisors and managers in the Operations Department, starting with the Operations Director and working down to the Unit Supervisor level. Basically, all supervisors in the Operations Department had to undergo an interview in order to retain their position in the department. The leadership assessment [ Page 5]

interviews evaluated supervisors based on their leadership, management, and behavioral skills, rather than on their technical abilities.

The leadership assessment altered the composition of the Operations Department's managerial team. For the most part, the employees with the highest scores retained their positions or were promoted, while those with lower scores were assigned to different positions or fired. For instance, by the time that Exelon was interviewing employees at Cichon's Unit Supervisor level, it had already been announced that all Superintendent-level supervisors (a higher level than Unit Supervisor) would be replaced. The process would also result in four out of nine Shift Managers (also levels above Cichon) being removed from their positions through demotion or termination. By September 2001, Cichon and the other Unit Supervisors were aware that the Operations Department was being restaffed and that they would soon be interviewed.

On September 7, 2001, Cichon directed his attorney to file a lawsuit concerning the 1999 overtime changes, naming himself and four other Byron Plant employees as plaintiffs. However, because of the September 11 catastrophe, Cichon's attorney did not file the lawsuit until September 25. Filed in the Northern District of Illinois, the suit alleged violations of the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 201 [ Page 6]

et seq.*fn2 Exelon's Legal Department, located in Chicago, received a copy of the lawsuit on September 28. Management at the Byron Plant did not become aware of the suit until October 2, when an e-mail acknowledging the suit was sent from ...

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