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Steven Zelenika, Nicholas Caporelli, and Charles Raney v. Commonwealth Edison Co.

July 23, 2012


The opinion of the court was delivered by: Hon. Rebecca R. Pallmeyer


Plaintiffs bring this action against their former employer, Commonwealth Edison Co. (the "Defendant" or "ComEd"), to recover overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/4a. Plaintiffs worked as Senior Distribution System Dispatchers, a position that involved monitoring and addressing problems with ComEd's electrical distribution system. Monitoring the system from desks at a central facility in Joliet, Illinois, ComEd Dispatchers' responsibilities included communicating with field crews making scheduled and emergency repairs to ComEd's grid, directing the crews through repair procedures (including safety protocols for energizing and de-energizing equipment), and entering information received from the field crew into ComEd's computer system. Plaintiffs claim that they were non-exempt employees and that ComEd violated FLSA and IMWL by paying Plaintiffs at a straight-time rate for overtime work. Defendant maintains that Plaintiffs are highly compensated employees who fall within the administrative and executive exemptions to the overtime requirements.

Plaintiffs filed this case in the Circuit Court of Cook County; ComEd removed the action to this court on May 14, 2009. (Notice of Removal [1].) Plaintiffs bring their FLSA claim as a representative action, on their own behalf and on behalf of five other former ComEd Dispatchers who filed notice with this court on October 20, 2010 (the "Opt-In Plaintiffs"). Plaintiffs have also moved to certify a class action for their state law cause of action, but that motion is not yet fully briefed. Additionally, Plaintiff Zelenika brings a retaliatory discharge claim on his own behalf only, alleging that ComEd terminated his employment in retaliation for his objections to ComEd's alleged policy of requiring Dispatchers to take meal breaks at their desks, in violation of the Illinois "One Day Rest in Seven" Act, 820 ILCS 140/3.*fn1 In its defense, ComEd asserts that Zelenika's discharge was the result of an investigation into the distribution of pornographic images through ComEd's e-mail system by several employees, including Zelenika.

The parties have filed cross-motions for summary judgment. For the reasons explained below, Defendant's motion is granted with respect to Plaintiffs' FLSA claim (Count I) and Zelenika's retaliatory discharge claim (Count V). The court concludes that material disputes of fact preclude summary judgment on Plaintiffs' IMWL claim (Count II), however, and elects to retain jurisdiction over that claim.


I. ComEd Dispatcher Positions

According to its website, Defendant ComEd, a corporate subsidiary of Exelon Corporation, delivers electricity to approximately 3.8 million customers across Northern Illinois. ComEd, Company Profile, (last visited July 19, 2012). Until their termination or resignation, ComEd employed Steven Zelenika, Nicholas Carporelli, and Charles Raney (the "Plaintiffs" or "Named Plaintiffs") as Senior Distribution System Dispatchers at its Operations Control Center ("OCC") in Joliet, Illinois. (ComEd's LR 56.1(a)(3) Statement of Material Facts (hereinafter "Def.'s 56.1") ¶ 6.)

Plaintiffs' job title changed several times during the course of their employment. Originally, Dispatchers were classified as either "Load Dispatcher," whose responsibilities included working with higher voltage equipment such as those found in substations, or "Operating Dispatcher," who worked with lower voltage lines outside of substations. (Pls.' Rule 56.1(a)(3) Statement of Undisputed Material Facts (hereinafter "Pls.' 56.1") ¶¶ 6-7.) At some point during or after 2000, these titles were changed to "Senior Dispatcher" and "Dispatcher," respectively, and later changed again to "Senior Distribution System Dispatcher" and "Distribution System Dispatcher II." (Pls.' 56.1 ¶ 6.) Around the time of this latest change in titles, ComEd also created the position of "Distribution System Dispatcher I," which entails fewer responsibilities and requires less experience than Distribution System Dispatcher II, but similarly involves work on lower voltage lines. (Dist Sys Dispatcher II Position Description, Ex. A-2 to Pinto Aff., App. 1 to Def.'s 56.1; Dist Sys Dispatcher I Position Description, Ex. A-3 to Pinto Aff.)

Though all Named Plaintiffs held the position of Senior Distribution System Dispatcher, several of the Opt-In Plaintiffs held Distribution System Dispatcher I or II positions. (Def.'s 56.1 ¶ 6.) Notably, one of those Opt-In Plaintiffs, Julian Smith, held the position of Distribution System Dispatcher II, and has been deposed in this litigation. (Id.) The remaining Opt-In Plaintiffs have agreed to be bound by the testimony and evidence submitted by the Named Plaintiffs and Opt-In Plaintiff Smith. (Id. ¶ 8.)

A. Dispatcher Responsibilities and Duties

Although their titles may have changed, Dispatchers' duties remained the same. Regardless of specific job title, Dispatchers monitor ComEd's power distribution system, oversee service to the system, and respond to customer complaints and power outages. (Def.'s 56.1 ¶ 12.)

ComEd's distribution system is divided into four regions with at least one Dispatcher working at the desk for each region. (Id. ¶ 13.) In exercising their duties, Dispatchers share responsibility for the reliability of ComEd's electrical services and the safety of ComEd's equipment, the field crews they work with to complete repairs, and the public. (Id. ¶ 20.) Consequently, Dispatchers must be highly skilled employees. ComEd requires its new Dispatchers to complete four months of classroom training, followed by on-the-job shadowing of experienced Dispatchers, before they are assigned to work on their own. (Id. ¶ 21.)

From their desks in the OCC, Dispatchers monitor ComEd's electrical distribution system and adjust voltages on the system using computer displays, alarm systems, maps, and controls. (Id. ¶ 5.) Dispatchers also receive notifications of power outages or other emergency situations directly from customers. (Id. ¶ 14.) Their duties include documenting changes in the distribution system such as system outages. (Pls.' 56.1 ¶ 32.) Most important to the present litigation, Dispatchers are also responsible for communicating with field crews to help resolve problems and complete repairs to the system. (Id. ¶ 12; Def.'s 56.1 ¶ 11.)

Some problems with the electrical grid are fixed through scheduled maintenance. In these cases, ComEd employees known as "Arrangers" prepare a "switching routine," a step-by-step procedure to deenergize equipment needing repair and to redirect power in the interim. (Def.'s 56.1 ¶ 17.) To ensure that the field personnel understand the switching routine, ComEd protocol requires a process called "three way communication," in which the Dispatcher reads the step-by-step routine to the field personnel, who then must repeat back each step to the Dispatcher. (Pls.' 56.1 ¶¶ 15-16.) Through this process, the Dispatcher ensures that the field conditions observed by the field crew match the specifications in the routine and the information contained in the computer system that the Dispatcher monitors. (Id. ¶ 17.) As field personnel complete the work, they "check-off" steps by reading them back to the Dispatcher. (Id. ¶ 24.)

In emergency, or "emergent," situations, such as a power outage, unplanned repairs are required. It is not clear from the record in this case how often unplanned outages occur in any given segment of the grid, but Opt-In Plaintiff Smith testified that the number across the entire ComEd distribution system could be as high as 150 in a given day (Smith Dep., Ex. 4 to Pls.' Local Rule 56.1(b)(3) Resp. to Def.'s 56.1 (hereinafter "Pls.' 56.1 Resp."), at 104), and Plaintiff Raney admitted that unplanned outages were a frequent occurrence. (Raney Dep., Ex. 2 to Pls.' 56.1 Resp., at 173.) Brian Goetz, a Shift Manager who previously held positions as an Operating Dispatcher and Load Dispatcher, testified that when he worked as a Load Dispatcher, approximately twenty percent of his time was devoted to dealing with emergency situations. (Goetz Dep., Ex. 5 to Pls.' 56.1 Resp., at 28.) In these situations, Dispatchers and field personnel had to complete repairs without the benefit of a switching routine designed ahead of time by an Arranger. (Caporelli Dep., Ex. 3 to Pls.' 56.1 Resp., at 104-05; Raney Dep. at 151-153; Smith Dep. at 105.)

For either scheduled maintenance or emergency repairs, work could not proceed if the Dispatcher or the field personnel disagreed on the appropriate steps to carry out the repair safely and effectively. (Def.'s 56.1 ¶ 17; Pls.' 56.1 ¶ 18.) In rare cases where the Dispatcher and the field personnel could not resolve a dispute, ComEd directed Dispatchers to involve a supervisor, referred to as a "Shift Manager," who would resolve the dispute by speaking with the field crew supervisor. (Peretti Dep., Ex. 6 to Pls.' 56.1 Resp., at 55-56.)

The parties disagree about how much discretion or independent judgment Dispatchers exercised in helping to create switching routines for emergent situations. Defendant asserts that in an emergency, Dispatchers were expected to help "design a switching route 'on the fly' to isolate faulty equipment, make the necessary repairs, and restore power." (Def.'s 56.1 ¶ 18.) Given the number of unique situations that could arise in the field, Defendant maintains that there could not possibly be established procedures for every contingency. According to the testimony of Robert Pinto, a former Shift Manager and current Operations Manager of the OCC, written procedures "only provide high level guidance. [Dispatchers] use that guidance and then provide their own judgment associated with whatever unique scenario there is in the field." (Pinto Dep., Ex. 10 to Pls.' 56.1 Resp., at 91.) Furthermore, Gerald Peretti, a former Dispatcher and current Shift Manager, testified that in emergency outage situations, Dispatchers were free to implement switching routines without any supervisor review. (Peretti Dep. at 48.) Peretti further testified that in emergent situations, where unplanned work was needed to prevent an outage, Dispatchers were expected to peer review one another's switcher routines. (Id.)

Plaintiffs note that even in emergency situations, ComEd stressed the importance of following procedures. According to Plaintiffs' testimony, ComEd has developed written standard operating procedures for many repairs and other facets of a Dispatcher's work-procedures, for example, on how to take equipment out of service and how to restore it to service. (Zelenika Dep., Ex. 1 to Pls.' 56.1 Resp., at 288-90; Raney Dep. at 270-73; Caporelli Dep. at 106.) Operations Manager Pinto acknowledged that there are more written procedures today than when he was a Dispatcher from 1998 until 2003. (Pinto Dep. at 9-13, 91.) Shift Manager Goetz testified that ComEd has established three levels of procedures: Level I procedures, which must be in a Dispatcher's hand at the time an action is executed; Level II procedures, which must be at the job site and readily available; and Level III procedures, which constitute reference material. (Goetz Dep., Ex. 5 to Pls.' 56.1 Resp., at 30.)*fn2 Goetz also testified that the procedures themselves state that "there's no power high enough to violate a procedure" (Id. at 29-30), and further testified that Dispatchers have no authority to change or deviate from procedures. (Id. at 20-21.) Plaintiff Raney recalled ComEd's emphasis on following procedures, testifying that management would send strongly worded messages to Dispatchers warning them to follow standard operating procedures in order to avoid safety incidents. (Raney Dep. at 264-65.)

B. Compensation

The rate ComEd pays its Dispatchers for overtime work is the focus of Plaintiffs' FLSA and IMWL claims. Dispatchers primarily worked twelve-hour shifts, and although their shifts might add up to more or less than forty hours in a given week, a Dispatcher's scheduled shifts were meant to average forty hours per week over a three-week period. (Zelenika Dep at 201; Raney Dep. at 36-42; Caporelli Dep. at 68-69; Smith Dep. at 175-76.) Plaintiffs contend that prior to 2001, ComEd treated all Dispatchers as non-exempt employees under FLSA, compensating them at one-andone-half time or double-time for hours worked in excess of their normally scheduled shifts. (Pls.' 56.1 ¶¶ 53-54; Zelenika Dep. at 272-73.) Defendant admits that prior to 2001, ComEd treated Operating Dispatchers (later Distribution System Dispatchers I and II) as non-exempt employees, but contends that Load Dispatchers (later Senior Distribution System Dispatchers) have always been exempt, salaried employees, who merely received "compensatory time off" for working extra hours-though they appear to have received such paid leave at time-and-one-half or double-time rates. (Def.'s 56.1 ¶ 26; Zelenika Dep. at 260.) Regardless of how they may have been compensated in the past, the parties agree that during all times relevant to this dispute, ComEd treated all Dispatchers as FLSA-exempt employees, compensating them on a straight-time basis for working extra hours or extra shifts. (Def.'s 56.1 ¶ 27.)

Despite the reduction in their overtime compensation rates, ComEd Dispatchers remained well compensated. Plaintiffs' and Opt-In Plaintiff Smith's total compensation, including overtime paid on a straight-time basis, exceeded $100,000 per year, or a pro rata portion of that amount for years in which they did not work an entire year.*fn3 Excluding overtime, the portion of a Dispatcher's total compensation constituting base salary could be docked if he missed a full day of work and had no vacation, sick time, or personal time remaining, though Plaintiffs do not contend that ComEd ever docked their compensation for missed days. (Pls.' 56.1 Resp. ¶ 108-09.) Plaintiff contends that ComEd did also dock compensation when Dispatchers arrived late to work or otherwise missed a fraction of a day; again, however, Plaintiffs themselves never missed fractions of days, and the only evidence they cite for their assertions that this docking occurred is their personal impression that it was management's practice. (Pls.' 56.1 Resp. ¶ 106.)*fn4

II. Zelenika's Termination

Plaintiff Zelenika also charges ComEd with retaliatory discharge, claiming that ComEd terminated his employment because of his numerous complaints to management about Dispatcher working conditions. Zelenika claims that he spoke on several occasions with his supervisors -including Shift Managers Peretti and Richard Urban, and Vince Ransom, the OCC Operations Manager-about issues including failure to provide Dispatchers with meal breaks and rest periods, staffing shortages, unmanageable workloads, and the reduction in the number of field personnel assigned to each crew. (Fourth Am. Compl. ¶¶ 38-39; Zelenika Dep. at 55-56.) Zelenika asserts that his objections on these matters were motivated by his concern that these conditions caused fatigue that could lead to Dispatcher error, putting the health and safety of ComEd personnel and the public at risk. (Fourth Am. Compl. ¶ 39; Zelenika Dep. at 57-59.)

Specifically, Zelenika contends that on an almost daily basis, he and other Dispatchers lodged complaints that they were not given meal breaks and were forced to eat, if they were able to eat at all, at their desks while they continued to monitor the system. (Zelenika Dep. at 55-56.) Plaintiff Raney confirmed that he was present on several occasions when Zelenika raised such complaints, and both Plaintiffs Raney and Caporelli likewise objected to ComEd's meal break policy, though Plaintiffs agree that Zelenika was more vocal about his objections. (Raney Dep. at 216-20; Caporelli Dep. at 152-54.) Zelenika further contends that sometime in 2005 or 2006 Ransom confronted him outside of a meeting at which safety complaints were raised and asked Zelenika why he "fel[t] the need to always raise issues . . . and defend other people." (Zelenika Dep. at 89.)

For their part, members of ComEd's management testified that either Zelenika never complained about ComEd's meal break policy or that they did not recall Zelenika making such complaints. (Peretti Dep. at 87-90; McGuire Dep. at 56; Urban Dep., Ex. 11 to Pls.' 56.1 Resp., at 23; Ransom Dep., Ex. 8 to Pls.' 56.1 Resp., at 80-83; Hallihan Dep., Ex. 14 to Pls.' 56.1 Resp., at 10-12.) Instead, Defendant contends that Zelenika's termination was the result of an investigation into inappropriate uses of Com-Ed computers.

In September 2006, Dispatcher Sean O'Malley lodged a complaint that Dispatchers were using ComEd's e-mail and computer systems to view and exchange pornographic images. (Ransom Dep. at 48-54.) O'Malley brought the issue to the attention of OCC Operations Manager Ransom, as well as OCC Director McGuire and Senior Human Relations Generalist Patrick Hallihan. (Def.'s 56.1 ¶ 34.) ComEd management brought in Teresa Strayer, an employee in Exelon's Case Management/Employee Dispute Resolution unit, to conduct an investigation. (Id. at 35.) Strayer was given the assignment because of her experience in conducting internal investigations of employment harassment claims throughout Exelon. (Id.)

On September 27, 2006, Strayer met with O'Malley to discuss his complaint, at which time O'Malley listed names of eight Dispatchers who he alleged had used ComEd computers and e-mail systems to view and share pornography. (Strayer Aff., App. Q to Def.'s 56.1, ¶¶ 5, 9.) Zelenika's name was not among those eight. (Def.'s 56.1 ¶ 36.) Working with ComEd's Information Technology Department, Strayer then obtained the contents of the named employees' ComEd e-mail accounts and a record of their internet activity. (Stayer Aff. ¶ 10.)

Where Strayer's investigation produced evidence that inappropriate material had been sent to one of the named employees by other ComEd employees, Strayer expanded her investigation to those other ComEd employees. (Id. ¶ 11.) In this manner, Stayer discovered that Zelenika had forwarded a web link to a pornographic video to two of the employees whom O'Malley had named. (Id. ¶ 15.) Strayer obtained and examined the contents of Zelenika's e-mail account to confirm that the message containing the link was sent from Zelenika's account. (Id.) Zelenika cannot recall forwarding the link and asserts that he did not watch enough of the video to discern that it was pornographic. (Pls.' 56.1 Resp. ¶ 39.)*fn5

Strayer classified the inappropriate material she discovered into three categories, which she contends were used in a 2003 investigation of employee e-mail usage elsewhere at Exelon. (Strayer Aff. ΒΆ 12.) From least to most egregious, "Level 1" content included "items of a non-business nature that were inappropriate and in poor taste but that were only mildly, if at all, sexually, racially or ethnically offensive"; "Level 2" content included "items containing sexually offensive content including partial nudity but not full frontal nudity or depictions of sex acts"; and "Level 3" content included "images depicting sex acts or full frontal nudity." (Id.) In making her disciplinary recommendations, Strayer also noted whether an employee had, least egregiously, received but deleted the inappropriate content; received and saved the content, either in ComEd's system or by forwarding the content to his own personal e-mail address; or, most egregiously, received and forwarded the item to someone else over ...

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