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following Herrmann and finding that there was no identity of the causes of action for purposes of res judicata between an FLSA and IMWL claim for underpayment of wages in an earlier action and the subsequent FLSA retaliation claim
Summary of this case from Anderson v. Guaranteed Rate, Inc.Opinion
02 C 3441
December 19, 2002
MEMORANDUM OPINION
This matter comes before the court on Defendant Exelon Generation Company's ("Exelon Generation") Rule 12(b)(1) and (6) motion to dismiss, or, in the alternative, Rule 59(e) motion for reconsideration of this court's October 31, 2002, ruling. For the reasons set forth below we deny the motion.
BACKGROUND
Because this is a motion to dismiss, we accept all well pleaded facts and allegations in the Complaint as true and draw all reasonable inferences in a light most favorable to Plaintiff Michael Cichon. See Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Exelon Generation is a producer and wholesaler of energy that owns and operates five nuclear power stations in Illinois. Since February of 1998 until the events which gave rise to this action, Cichon was an Operations and Unit Supervisor at Exelon Generation's Byron Nuclear Power Station in Byron, Illinois. On at least six occasions, Exelon Generation issued written commendations or cash awards to Cichon in recognition of his outstanding performance as Operations and Unit Supervisor. Exelon Generation named Cichon one of Byron Nuclear Power Station's Top Performing employees in 1999.
Prior to January 2000 Exelon Generation paid Cichon time-and-a-half for all hours worked in excess of forty per week. In January 2000 Exelon Generation determined that Cichon and nearly all of middle management were exempt from the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. ("IMWL"). Accordingly, it changed its overtime pay policy to the detriment of Cichon and most of middle management. Cichon repeatedly advised Exelon Generation that he objected to Exelon Generation's new overtime-pay policy. Moreover, Cichon organized and initiated a class action naming himself and four coworkers as plaintiffs against their employer's parent corporation, Exelon Corporation. The class action, entitled Robert N. Myers, et al. v. Exelon Corporation, No. 01 C 7399, was filed in this district on September 25, 2001. The action was filed under the FLSA and the IMWL on behalf of all categories of employees at all of Exelon Generation's five nuclear power stations. The action was dismissed with prejudice on October 3, 2002.
On October 23, 2001, Exelon Generation gave Cichon sixty days to find another position in Exelon Generation's employ before being terminated and suggested that he apply for positions outside of the Byron Nuclear Power Station. On December 24, 2001, Cichon accepted a lower paying position at Commonwealth Edison Company ("ComEd"), another subsidiary of Exelon Corporation. Cichon alleges that he was discharged in violation of the FLSA and Illinois common law. On May 14, 2002, he filed the present action naming only himself as plaintiff. The present action is based on facts occurring after the initiation of the class action. Cichon now complains of being fired in retaliation for his vocal and legal opposition to Exelon Generation's new overtime-pay policy. Count I of the complaint (the "Complaint") is for retaliation in violation of the FLSA. Count II is for retaliatory discharge in violation of Illinois common law.
Exelon Generation moved to dismiss both counts. On October 31, 2002, we dismissed Count II only. Subsequently, without leave, and for reasons not apparent, Cichon filed an amended complaint substantively identical to his original complaint. The amended complaint contains Count I and the previously dismissed Count II. Exelon Generation now moves to dismiss the amended complaint, or, in the alternative, for reconsideration of the portion of our October 31, 2002, order denying Exelon Generation's motion to dismiss Count I.
LEGAL STANDARD
I. Motion to Dismiss
"The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (quoting Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). A complaint need only specify' "the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (citing Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 863 (7th Cir. 2002)). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
II. Motion to Reconsider
Motions for reconsideration under Rule 59(e) are designed to correct manifest errors of law or fact or to present newly discovered evidence. Publishers Res., Inc. v. Walker-Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985). Such motions do not give a party the opportunity to rehash old arguments or to present new arguments "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, a Rule 59(e) motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence" in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny a Rule 59(e) motion "is entrusted to the sound judgment of the district court." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
With these principles in mind, we address the motions before us.
DISCUSSION
I. Motion to Dismiss
A. Fair Labor Standards Act
Exelon Generation moves to dismiss Count I (retaliation violation of the ELSA) on res judicata grounds based on the dismissal of Robert N. Myers, et al v. Exelon Corporation, No. 01 C 7399. In that case, plaintiffs (including Cichon) sued Exelon Generation for violating the FLSA and IMWL by underpaying employees with respect to their hours worked in excess of forty per week. Exelon Generation then allegedly terminated Cichon in retaliation for his role in planning the first action, thereby prompting Cichon to file this second action. The first action was ultimately dismissed with prejudice on October 3, 2002. Exelon Generation contends that the first action, having been dismissed with prejudice, bars the current action.
"For res judicata to apply in federal court three requirements must be met: (1) an identity of the causes of actions; (2) an identity of the parties or their privies; and (3) a final judgment on the merits." Golden v. Barenborg, 53 F.3d 866, 869 (7th Cir. 1995) (citing Matter of Energy Co-op., Inc., 814 F.2d 1226, 1230 (7th Cir. 1987)). Cichon agrees that there is identity of the parties but disputes that there is identity of the causes of action or that there was a final judgment on the merits.
Cichon argues that a dismissal with prejudice does not constitute a final judgment on the merits. Cichon is incorrect. See Phillips v. Shannon, 445 F.2d 460 (7th Cir. 1971) (overwhelming weight of authority holds that dismissals with prejudice constitute dispositions on the merits).
Cichon argues that there is no identity of the causes of action between his FLSA and IMWL claim for underpayment in the first action and his FLSA retaliation claim for termination in the present action. Cichon is correct. The Court of Appeals has held that "two claims are one for purposes of res judicata if they are based on the same, or nearly the same, factual allegations." Herrmann v. Cencom Cable Assoc., 999 F.2d 223, 226 (7th Cir. 1993). The Herrmann court, albeit in dicta, then explained what they meant by "the same, factual allegations" using an example identical to the facts before us today:
It is like the typical retaliation case, in which an employee files a claim based on some set of facts and then the employer fires him for filing the claim, precipitating a second claim. They are two claims, not one, for purposes of res judicata. While it is true in such a case that, but for the filing of the first claim, there would not have been a second claim, the two claims are based on (largely) different facts: the first claim on whatever facts gave rise to that claim, the second claim on the filing of the first claim and the employer's response to that filing.Id at 227 (citation omitted) (emphasis added). Res judicata does not bar Count I of Cichon's amended complaint.
B. Illinois Common Law Retaliatory Discharge
On October 31, 2002, we dismissed Count II (retaliatory discharge under Illinois common law) of the complaint. In his amended complaint, Cichon reasserts that claim.
The claim, however, remains dismissed.
II. Motion to Reconsider
Since we do not now grant Exelon Generation's motion to dismiss Count 1, Exelon Generation alternatively moves to reconsider our October 31, 2002, ruling. The motion to reconsider, however, is not appropriate since it does not "clearly establish either a manifest error of law or fact" or "present newly discovered evidence." See LB Credit Corp., 49 F.3d at 1267 (quoting Meyer, 781 F.2d at 1268). Exelon Generation's motion does not raise any manifest error of law or fact. Additionally, the only "newly discovered evidence" is that the first action has now been dismissed with prejudice. The effect of that dismissal, however, has already been considered with respect to the second motion to dismiss. See supra.