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Kish v. Exelon Generation Co.

March 31, 2008


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff John N. Kish filed suit against Defendants Exelon Generation Company, LLC ("Generation") and Exelon Corporation (together, "Exelon") alleging that he was suspended and demoted as the result of discrimination based on age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"). Defendants now move for summary judgment; for the following reasons, Defendants' motion is granted.


Mr. Kish began working for Commonwealth Edison Co. ("ComEd") in 1992 at the Dresden Nuclear Power Station. ComEd subsequently merged with Exelon, and Mr. Kish fell under the employ of Generation. In August 2004, he became a supervisor working in the "Balance of Plant" Group in the Engineering Department of the Dresden power plant. In August 2005, Generation issued a "Nuclear Event Report" detailing the failure of supervisors to make sure that the engineers working under them were certified for the work they were performing. The Report was coded red, indicating that this was considered a serious violation. The Dresden plant was directed to take immediate corrective action.

In response, Mark Kanavos, the Director of Engineering at Dresden, interviewed all of the first line supervisors in the Engineering Department: Robert R. Beavers, Gregory L. Howard, Joseph M. Kotowski, Timothy L. Loch, and Mr. Kish. The interviews followed a standard form using a prepared list of questions. The form also informed the interviewees that dishonesty could result in discharge. The supervisors were each asked whether they were aware of the procedural requirement to verify the qualifications of the engineers prior to making work assignments. Messrs. Beavers, Howard, Kotowski, and Loch all stated that they were aware of the requirement, though they acknowledged having ignored it most of the time for various reasons. Mr. Kish, on the other hand, insisted through multiple interviews that he was unaware that the requirement existed. Following the interviews, each of the first line supervisors, with the exception of Mr. Kish, received written warnings. Mr. Kish was suspended and then demoted to an in-service inspection position as an engineer. Charlie Bowser was promoted to replace Mr. Kish as a first line supervisor in the "Balance of Plant" Group.0

Exelon asserted that Mr. Kish received a more severe punishment than the others as a result of his response during the interviews. Mr. Kanavos stated that he did not believe Mr. Kish could continue working as a supervisor. During one of the meetings, Mr. Kanavos presented Mr. Kish with a form that Mr. Kish had signed indicating that he had read the procedure which made supervisors responsible for verifying certifications prior to assigning work. In addition, Mr. Kanavos believed that Mr. Kish's answer was completely inconsistent with the knowledge of an engineer and supervisor with his years of experience. Thus, Mr. Kanavos strongly believed that Mr. Kish was being dishonest during the interviews. At bottom, Mr. Kanavos believed either that Mr. Kish was lying, or that he was incompetent.

In August 2005, Mr. Kish was forty-nine (49) years old. Among the other supervisors, Mr. Beavers was fifty-three (53), Mr. Howard was forty-five (45), Mr. Kotowski was fifty (50), and Mr. Loch was forty-nine (49). Mr. Bowser, who replaced Mr. Kish as supervisor, was thirty-two (32) years old.


A. Summary Judgment Standard

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322--33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

B. ADEA Standard

The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate 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) (2000). To establish a claim under the ADEA, Mr. Kish must show that his age "actually motivated [Exelon]'s decision," i.e., he must demonstrate that his age "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (internal quotation marks omitted). Mr. Kish may prove his claim through one of two methods-through direct evidence or through the indirect burden-shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, Mr. Kish must establish a prima facie case of discrimination. If he is able to do so, the burden shifts to Defendants who must then articulate a legitimate, non-discriminatory reason for Mr. Kish's suspension and demotion. See Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 472 (7th Cir. 2002). If Exelon meets this burden, Mr. Kish must "muster sufficient evidence to convince a rational jury that [Exelon's] justifications were pretextual." Id. at 472--73.


A. Mr. Kish Cannot Proceed Under the ...

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