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Rivera v. Commonwealth Edison Co.

Court of Appeals of Illinois, First District, Second Division

December 3, 2019

Monica RIVERA, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,
COMMONWEALTH EDISON COMPANY and Exelon Corporation, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 17-CH-07460 The Honorable Raymond W. Mitchell, Judge Presiding.

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[Copyrighted Material Omitted]

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         Ryan F. Stephan, James B. Zouras, Andrew C. Ficzko, and Anna M. Ceragioli, of Stephan Zouras, LLP, of Chicago, for appellant.

          Neil H. Dishman, Julia P. Argentieri, and Nicholas A. Simpson, of Jackson Lewis P.C., of Chicago, for appellees.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justice Coghlan concurred in the judgment and opinion. Justice Pucinski specially concurred, with opinion.



         ¶ 1 The plaintiff, Monica Rivera, filed a class action complaint against the defendants, Commonwealth Edison Company (ComEd) and Exelon Corporation (Exelon), alleging that they violated her rights under the Employee Credit Privacy Act (820 ILCS 70/1 et seq. (West 2016)) by investigating her credit history in connection with a conditional offer of employment as a customer service representative (CSR) and ultimately refusing to hire her because of the results of that investigation. The trial court granted summary judgment in favor of the defendants on the plaintiff's claim. The plaintiff now appeals. For the reasons that follow, we affirm the trial court's entry of summary judgment.

         ¶ 2 I. BACKGROUND

         ¶ 3 ComEd is a public utility company that provides electrical services to approximately 3.8 million customers in Illinois. It is a subsidiary of Exelon, which is an electric utility holding company. On May 9, 2017, the defendants extended to the plaintiff a conditional offer of employment for a temporary part-time position as a CSR with ComEd, with a starting wage of $31.42 per hour. This was an entry-level position that required a high school diploma or equivalent. The offer of employment was contingent upon the completion of a successful background check, credit check, and drug screen. As part of this, the defendants obtained a consumer report on the plaintiff that included certain information about her credit history. On May 23, 2017, a representative of the defendants sent an e-mail to the plaintiff, rescinding the conditional offer of employment. That e-mail stated that "due, in part, to information received from the consumer report previously provided to you, we are not able to offer you employment at this time."

         ¶ 4 The plaintiff filed a class action complaint alleging that, by inquiring into her credit history and obtaining her credit report in connection with her application for the CSR position and by ultimately refusing to hire her for that position because of information contained in the report, the defendants violated her rights under the Employee Credit Privacy Act. See id. § 10(a). The plaintiff alleged that she was bringing the case on behalf of herself and other similarly situated individuals who had applied for the same position or other similarly titled positions with the defendants and had been subjected to a credit inquiry or check as a condition of employment.

         ¶ 5 The defendants answered the complaint and later filed a motion for summary judgment. In general, they argued in the

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motion for summary judgment that the prohibition on an employer's investigation into an applicant's credit history or use of that credit history in connection with hiring decisions did not apply to the customer service representative position for which the plaintiff had been a candidate. They argued that the possession of a satisfactory credit history was a bona fide occupational requirement of that position because it "`involves access to personal or confidential information'" of the defendants' customers. See id. § 10(b)(5). After conducting discovery pertaining to the issues raised in the defendants' motion and supporting affidavits, the plaintiff filed a response supported by depositions and other evidence.

         ¶ 6 The affidavits, depositions, and other evidence in the summary judgment record demonstrate the facts as follows. For any residence, business, or other entity within ComEd's service territory to obtain electricity, an account must be established with ComEd. This is the case even for customers who purchase electricity from a different supplier, as ComEd still delivers it. Thus, as ComEd provides electrical services to 3.8 million customers, it receives and stores a significant amount of information about its customers.

         ¶ 7 The primary database that ComEd uses to store information about its customers is its Customer Information Management System (CIMS). Access to CIMS is restricted to those ComEd employees who hold positions requiring them to use it in the course of their job duties. Over 2000 ComEd employees have some access to CIMS. Among those who have access, employees have varying levels of access to the information in the database, depending on what information they require to perform their job duties. ComEd denotes part of the information within CIMS as "personal identifiable information," which includes information such as a customer's Social Security number, tax ID number, driver's license number, credit card number, and bank account number. Access to such personal identifiable information is restricted to those positions and groups that are required to gather and use this information in the performance of their job duties. This includes the customer care, billing, security, new business, and claims departments. CSR is one of the positions with access to the part of CIMS where customers' personal identifiable information can be entered into the database.

         ¶ 8 The job of ComEd's CSRs involves communicating by telephone with new and existing customers seeking to establish or transfer electrical service or making other inquiries concerning their service or account with ComEd. In certain situations, CSRs obtain or are able to view customers' full Social Security numbers. One situation in which CSRs obtain a customer's full Social Security number is when a new customer calls ComEd to establish service. As part of that process, CSRs validate the new customer's identity by requesting the customer's name and full Social Security number and entering that information into the CIMS database, where it is validated by Equifax. After that occurs, CSRs request additional information, including the new customer's date of birth and driver's license number, and enter that information into CIMS. After the appropriate information is obtained about the new customer and entered into CIMS, CSRs are no longer able to view the customer's full Social Security number in CIMS. Rather, only the last four digits of the number are visible to the customer service representative. The same occurs with customers' full driver's license numbers. Only the last several digits of these can be viewed in CIMS by a CSR after being entered.

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          ¶ 9 Two additional situations in which CSRs obtain or can view a customer's full Social Security number are when a new customer's Social Security number is found to exist in another customer's record, and when a customer calls to inform ComEd that he or she has filed for bankruptcy and is entitled to have his or her electricity restored. In cases involving the duplication of a Social Security number, CSRs send an electronic communication to the revenue management department to resolve the issue. That communication typically includes the full Social Security number given by the new customer. CSRs have the continued ability to view that communication, including the full Social Security number, until it is resolved by the revenue department, which can take up to 12 days. In cases where a customer reports declaring bankruptcy, CSRs ask the customer to provide either a full Social Security number or a bankruptcy case number. CSRs then send that information in an electronic communication to the bankruptcy or legal department. CSRs have the continued ability to view that communication, including the full Social Security number, until the customer's electricity is restored, which can take up to 30 days.

         ¶ 10 CSRs also obtain customers' bank account numbers and credit card information when customers call ComEd and provide this information to pay a bill or an overdue balance. After these numbers are initially inputted into CIMS, CSRs can no longer view the full bank account numbers or credit card numbers.

         ¶ 11 After ComEd initially obtains personal identifiable information from customers, its CSRs have the continued ability to view certain information in CIMS to perform their job duties and assist customers. This includes the ability to view partially redacted Social Security numbers, driver's license numbers, matricula numbers, bank account information, dates of birth, and address history for all current and former ComEd customers.

         ¶ 12 Eric Leslie, one of ComEd's senior trainers who provides training to CSRs in the performance of their duties, was questioned in his deposition about ComEd's "new business" department. This is a different department than the customer care department, in which CSRs work. Leslie testified that the new business department handles calls concerning newly constructed buildings or houses that require electrical infrastructure to be installed for ComEd to deliver electricity. He testified that those calls are not handled by CSRs. He testified that where the infrastructure already exists at a premises and a customer calls to put their name on the service there, such calls are handled by CSRs in the manner described above.

         ¶ 13 ComEd employs approximately 500 CSRs, who work on two floors of an office building in Oak Brook, Illinois. They work in individual cubicles with two computer monitors and a pad of paper on which they can take notes during calls. Each CSR handles about 100 calls from customers each workday. The calls that CSRs handle are recorded and stored electronically in a database. CSRs' supervisors can listen during or after these calls, and they can also monitor the computer screens of the CSRs. ComEd also uses a third-party vendor, Clear Metrics, to monitor calls handled by CSRs for quality assurance purposes. Fewer than 1% of the calls handled by CSRs are actually monitored.

         ¶ 14 After a new customer establishes an account, ComEd sends a letter to the customer. The letter, a sample of which is included in the record, invites customers to visit the defendants' website. The letter does not specifically direct customers to the website for the purpose of accessing the defendants' privacy policy, nor does

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the record on appeal contain any other evidence of the defendants specifically directing customers to their website for the specific purpose of accessing the privacy policy. However, the privacy policy is generally available on the defendants' website and is included in the record on appeal. It states in part, "Through your use of our * * * Services we may collect Personal Information (`PI'), which is information that identifies you as an individual or relates to you as an identifiable individual," including "your first and last name, home or business address, email address, and telephone number." It further states that the defendants "must collect certain PI and [personally identifiable information (PII)] if you choose to use our Services. PII includes information where your name is combined with your Social Security number, driver's license number, state identification card number, bank account number, credit card or debit card number, or unique biometric data."

         ¶ 15 The trial court granted the defendants' motion for summary judgment. The trial court concluded that the undisputed facts established that a satisfactory credit history was a bona fide occupational requirement of the CSR position that the plaintiff sought because the position "`involves access to personal or confidential information.'" See id. As such, the trial court determined that the prohibition on an employer's investigating and considering a job ...

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