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Ramos v. Commonwealth Edison Co.

August 20, 2009

JAMES RAMOS, PLAINTIFF,
v.
COMMONWEALTH EDISON COMPANY D/B/A COMED, DEFENDANT.



The opinion of the court was delivered by: David H. Coar United States District Judge

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Plaintiff James Ramos ("Plaintiff" or "Ramos") has made claims of age discrimination and national origin discrimination pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. Defendant Commonwealth Edison Company d/b/a ComEd ("Defendant" or "ComEd") now brings this motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, the motion is granted.

I. Jurisdiction and Venue

This Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 1343(4). Venue is proper under 28 U.S.C. § 1391(a).

II. Facts

The facts below are taken from Defendant's Rule 56.1 Statement of Undisputed Material Facts ("DSOF") or Plaintiff's Rule 56.1 Statement of Undisputed Material Facts ("PSOF"). They are undisputed unless otherwise noted.

a. Background

Plaintiff was born on April 27, 1958. PSOF ¶ 81. Plaintiff testified that he is half Caucasian and half Puerto Rican; his father was born in Puerto Rico and his mother was born in the United States. Id.; Ramos Dep. 4:20-5:4.

Defendant ComEd provides electricity to the northern part of Illinois, including Chicago and the greater Chicago area. Plaintiff began working for ComEd on January 7, 1985 as a C Plant Operator. PSOF ¶ 82. In 1989, Plaintiff was promoted to overhead lineman. As a lineman, Plaintiff worked "on the electrical distribution system in the overhead and underground construction" and was responsible for "keep[ing] the lights on." Ramos Dep. 24:13-17; 25:15-25:21. When Plaintiff entered the overhead department as a lineman, he signed a form that stated that Plaintiff "had been informed that because of the nature of our business and our obligation to provide service to our customers, callbacks are 'a way of life' in the Overhead Department," and that he recognized his "obligation to make every effort to respond promptly to emergency callbacks." DSOF ¶ 9. Plaintiff was promoted to the position of crew leader in 2003. He continued to perform essentially the same work as he did as a lineman, except he led a crew of one or two other employees. As a crew leader, it was again Plaintiff's job to keep the lights on. He was technically assigned to a reporting location in Skokie, Illinois, but actually reported to a location in Highland Park, Illinois. Id. at ¶ 11.

Plaintiff directly reported to Phil Russell between 2006 and 2007, Dzenan Vojnikovic (Caucasian, 36 years old) in early 2006 and in the second half of 2007, and Mike Kikendal in 2006. PSOF ¶ 84. Vojnikovic was responsible for supervising crew leaders, including Plaintiff. Through May 2008, Vojnikovic reported to Rommel Noguera, who was born in 1964. Id. at ¶ 85.

b. The ARCOS System

As a regulated public utility, ComEd has an obligation to restore electrical service to its customers as soon as possible following a service outage. To make emergency repairs, restore electrical service, and otherwise meet workload needs, ComEd telephones or "calls-out" employees to return to work overtime. DSOF ¶ 5. In 2003, ComEd implemented an automated web-based system called the Automated Roster Callout System ("ARCOS"), a method of summoning employees to overtime "callout" jobs. Approximately 2,500 ComEd employees are subject to ARCOS. Employees can program up to three telephone numbers, including a pager number, into the system. When a callout is activated, the system automatically calls employees in the relevant job classification and geographic area in reverse order of the number of hours the employee has been paid for overtime during the calendar year. If an employee does not answer the first programmed number, the system leaves a recorded message but also calls any other number programmed by the employee, and leaves a similar message, before calling the next employee.

An employee has 20 minutes to respond to the callout; a failure to respond within that period is treated as a declined callout. The system automatically tracks whether the employee is credited for accepting a call, or charged for declining a call. Employees can be excused for various reasons, including a vacation, sick leave, or being at work. ComEd measures ARCOS performance and administers discipline by callout periods. DSOF ¶ 13, 14. The program included progressive discipline if the employee did not accept the required number of callouts per measurement period: first a formal warning, then a one-day suspension, a three-day suspension, a five-day suspension, and then termination. Id. at ¶ 15.

The ARCOS callout percentage of each Highland Park employee was posted on the bulletin board where Plaintiff reported each day at the beginning of the shift. Plaintiff knew what was expected of him and what he had to do with respect to callouts in order not to incur discipline. Id. at ¶ 18. He testified that he "kept track of his callout acceptance percentage" and "tried to keep [his] percentage at what was required to keep from being disciplined." Ramos Dep. 87:3-7. Plaintiff understood that all of the crew leaders and linemen across the company were subject to the same work expectations under ARCOS. Id. at ¶ 13. Plaintiff received instruction and training about the ARCOS program. He understood the program's progressive discipline system. Id. at ¶ 15. Plaintiff programmed only his home phone to receive callouts. He did not program either his company-issued cell phone or his wife's cell phone to receive callouts. He did not request a free pager from ComEd. Id. at ¶ 16. Plaintiff understood that if he thought he was wrongly charged with a declined callout, he had to complete a callout exception form to have it excused. Id. at ¶ 17.

c. Plaintiff's Performance Record Under the ARCOS System

According to the affidavit of Michael Mason, the ARCOS Program Administrator, during the third quarter of 2003, employees had to respond to at least one callout to avoid an informal warning. Mason Aff. Ex. 1. Plaintiff's callout response record for that period was 0 out of 25 callouts. Ramos Dep. Ex. 6 (Bates #000222). Plaintiff received an informal warning letter setting out his callout response rate in the third quarter of 2003 and ...


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