605
BEFORE THE
U.S. DEPARTMENT OF LABOR
NORTHEAST REGION
------------------------------X
In the Matter of: :
:
OSCAR B. SHIRANI, :
:
Complainant, : Case No.: 2002-ERA-28
v. :
:
COMED/EXELON CORPORATION, :
:
Respondent. :
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U.S. District Court
Courtroom 1944-C
Dirksen U.S. Courthouse
230 S. Dearborn Street
Chicago, Illinois 60604
Thursday,
December 19, 2002
The above-entitled matter came on for hearing,
pursuant to notice, at 9:00 a.m.
BEFORE: ROBERT J. LESNICK,
Administrative Law Judge
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APPEARANCES:
On behalf of the Complainant:
MICHAEL C. McDERMOTT, ESQ.
134 N. LaSalle Street
Suite 1410
Chicago, Illinois 60602
312-372-4550
On behalf of the Respondent:
SCOTT E. GROSS, ESQ.
DARREN R. REISBERG, ESQ.
Sidley, Austin, Brown, and Wood
10 South Dearborn Street
Chicago, Illinois 60603
312-853-7011
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Reporter: Stuart Karoubas Date: December 19, 2002
OALJ Case Name & Number: Oscar B. Shirani, 2002-ERA-28
WITNESS (FULL NAME) DIRECT CROSS REDIRECT RECROSS
Kevin Yessian 608 612 627 627
Martha Garza 634 648 656 657
Ruth Ann Gillis 663 699
Ellen Dee Caya 723
Russell Bastyr 735 789
EXHIBITS
EXHIBITS IDENTIFICATION RECEIVED WITHDRAWN REJECTED
RX 12 756 756
RX 13 767 767
RX 19 637 637
RX 20 638 638
RX 22 647 647
RX 25 648 648
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1 P R O C E E D I N G S
2 (8:38 a.m.)
3 JUDGE LESNICK: All right. This is day three of
4 Shirani versus Exelon, 2002-ERA-28. And raise your right hand,
5 sir.
6 (Whereupon,
7 KEVIN C. YESSIAN
8 was called as a witness by and on behalf of the Respondent, and
9 after having been first duly sworn, was examined and testified
10 as follows:)
11 JUDGE LESNICK: Mr. Gross, you may question the
12 witness.
13 DIRECT EXAMINATION
14 BY MR. GROSS:
15 Q Mr. Yessian, will you please state your full name and
16 spell your last name for the record?
17 A Kevin C. Yessian, Y-e-s-s-i-a-n.
18 Q Mr. Yessian, who is your current employer?
19 A Exelon.
20 Q What specific Exelon entity?
21 A Exelon Generation.
22 Q And what position are you currently in?
23 A Vice President of supply.
24 Q When did you assume that position?
25 A September of 2000.
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1 Q When did you first come to work at Exelon Generation
2 or any other Exelon company?
3 A September of 2000.
4 Q Prior to that you worked for whom?
5 A A company by the name of CBNI which stands for
6 Chicago Bridge and Iron.
7 Q Prior to September of 2000 did you have any
8 affiliation with Commonwealth Edison Company or Exelon Nuclear?
9 A None whatsoever.
10 Q What briefly are your duties as vice president of
11 supply?
12 A I'm responsible for approximately 1.3 billion dollars
13 of annual purchases, all the requirements of both services and
14 materials for the organization as far as generation is
15 concerned.
16 Q When did you first meet Oscar Shirani?
17 A Probably within a couple weeks after I hired onboard.
18 Q Where did you meet him and how did it come to pass
19 that you met him?
20 A Oscar Shirani is an employee within the group of
21 supplier evaluation services who worked for Russ Bastyr.
22 Q What did Mr. Shirani tell you in this conversation
23 with you that first conversation about himself?
24 A What I recall is some of the discussions is that he
25 enjoyed working for Exelon and he wanted to stay working for
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1 Exelon and just sort of general type of conversations.
2 Q And did he in that conversation have any discussion
3 with you about any frustrations he was having in his position?
4 A No, he did not.
5 Q When did you first learn that Mr. Shirani was
6 considering a position in the finance organization of the
7 company?
8 A It was probably within one to two months after the
9 September period.
10 Q And how did you learn that?
11 A He approached me and he had indicated that he was
12 interested in a position within finance and I had mentioned to
13 him that, you know, what kind of skill sets did he have for
14 that particular position versus the skill sets he has in his
15 previous position within the supplier evaluation group.
16 Q Why did you tell him that?
17 A Ruth Ann at the time was in charge of finance and
18 Oscar's background was predominately technical.
19 Q What did Mr. Shirani tell you regarding the reason he
20 was interested in that position?
21 A He was specifically interested in advancing and
22 seeking a higher grade level position in the organization.
23 Q What did you tell Mr. Shirani in that conversation
24 regarding any possibility of coming back to nuclear if he
25 leaves?
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1 A Well, I had mentioned that based on my assessment
2 within the first full 40 or 50 days that I was engaged in the
3 company and I questioned the need to have that many people in
4 the supplier evaluation group. At the time there was
5 approximately 11 people. Today there's seven individuals
6 including Russ Bastyr who's the supervisor and manager of the
7 department.
8 Q Again, what did you tell Mr. Shirani on that topic in
9 this conversation?
10 A I had mentioned to him that I was planning on
11 reducing the staff down to seven and that if he was to leave in
12 that position it would not be filled.
13 Q Can you look at the binder to your left there which
14 is a binder of Respondent's Exhibits. And specifically turn to
15 Exhibit 32.
16 And that is an e-mail in the bottom portion that
17 Mr. Shirani sent to Mr. Ellis with you cc. Do you see that
18 e-mail?
19 A Yes, I do.
20 Q Do you recall a conversation with Jerry Ellis on or
21 before the date of this e-mail July 26, 2001?
22 A I, the discussion that I informed Mr. Ellis was that
23 there were no open positions in my particular group.
24 Q And does this e-mail accurately reflect what you told
25 Mr. Ellis in that conversation?
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1 A It specifically says it had been reduced from 11 to
2 seven.
3 Q Did you ever report directly or indirectly to David
4 Helwig?
5 A For a very short period.
6 Q How short?
7 A Approximately two months.
8 Q Did Mr. Helwig ever ask you directly or suggest to
9 you that you take any particular action against or towards
10 Mr. Shirani?
11 A None whatsoever.
12 Q Did anyone ever ask you directly or suggest to you
13 that you encourage or get Mr. Shirani to leave Exelon Nuclear?
14 A None whatsoever.
15 Q Did you ever do that?
16 A No.
17 MR. GROSS: I have no further questions.
18 JUDGE LESNICK: Mr. McDermott, you may cross examine.
19 CROSS EXAMINATION
20 BY MR. McDERMOTT:
21 Q Your testimony is you had one conversation with
22 Mr. Shirani?
23 MR. GROSS: Objection. That's a mischaracterization.
24 MR. McDERMOTT: I believe that's --
25 JUDGE LESNICK: It's on cross. I'll allow it.
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1 BY MR. McDERMOTT:
2 Q Is that your testimony?
3 A No. I believe I think I was reanswering his question
4 as it relates to a particular conversation associated with his
5 interest in seeking a position outside of supply. I had, much
6 like I have a lot of conversations with a lot of the employees
7 that work for me as to what's happening, what's going on, etc.
8 I can't recall whether it was four conversations, three
9 conversations or 15 conversations.
10 Q So you may have had 15 conversations with
11 Mr. Shirani?
12 A No, I believe the point that I'm making is --
13 Q I'm not asking what point you're making. I'm asking
14 you a question. Did you have just one conversation with
15 Mr. Shirani?
16 A No. There was probably more than one conversation.
17 Q How many did you have?
18 A I don't keep track of the conversations I have with
19 all of my employees.
20 Q Was Mr. Shirani your employee when you had your
21 conversation with him?
22 A No. He was not my employee he was --
23 Q Okay.
24 A -- an employee --
25 Q Let me ask you --
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1 MR. GROSS: Can he finish the answer, please.
2 MR. McDERMOTT: He said no. That's the answer I
3 wanted.
4 MR. GROSS: He can finish his answer. Please don't
5 interrupt.
6 MR. McDERMOTT: All right.
7 THE WITNESS: You asked whether or not he was an
8 employee to me. He worked for Russ Bastyr. He was two levels
9 down in the organization.
10 BY MR. McDERMOTT:
11 Q I'll ask you again. Did he work for you?
12 A He worked within the supplier evaluation group of
13 which is part of the supply organization.
14 Q I see. So he was one of your employees?
15 A That is correct.
16 Q And you came from Chicago Bridge, right?
17 A Correct.
18 Q And in the first two months you had a conversation
19 with somebody two levels below you?
20 A I have a very small group here in the Canterra office
21 consisting of approximately 25 employees.
22 Q When you say the Canterra office, what did you mean?
23 A At the time it was in Downers Grove.
24 Q Where is it now?
25 A It's in Canterra which is in Warrenville.
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1 Q At the time you had this conversation during the
2 first two months of your employment with Exelon when you came
3 from Chicago Bridge, where did you have this conversation with
4 Mr. Shirani?
5 MR. GROSS: I'll object as to vagueness. We talked
6 about two different conversations with him. If you could
7 please identify which --
8 MR. McDERMOTT: I don't know how many conversations,
9 Judge, I'm trying to find that out.
10 MR. GROSS: And I'm asking you to identify which
11 conversation.
12 MR. McDERMOTT: The first conversation. The only one
13 he gave testimony to.
14 MR. GROSS: Objection. Mischaracterization.
15 JUDGE LESNICK: He can answer.
16 THE WITNESS: I'm not sure. Can you repeat the
17 question.
18 BY MR. McDERMOTT:
19 Q Where did you have this first conversation with
20 Mr. Shirani?
21 A I would surmise that it was in the building --
22 Q Where?
23 A -- in which we are engaged. At the time it was in
24 Downers Grove.
25 Q All right. So this was Downers Grove sometime in
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1 September, October?
2 A September or October.
3 Q Not November?
4 A Was, was within the two or three months in which he
5 was under our group.
6 Q What date in December, I'm sorry. What date in
7 September did you come to work for Exelon?
8 A It was approximately September 1st.
9 Q September the 1st.
10 A Correct.
11 Q And did Mr. Shirani come to your office for this
12 conversation?
13 A I don't believe so.
14 Q Where did you have this conversation?
15 A It was either in a conference room or was at his
16 desk.
17 MR. GROSS: Your Honor, I'm again going to object.
18 He keeps referring to this conversation. There is testimony
19 about the initial conversation when he first met him and then a
20 conversation about a position. I would just like some clarity
21 on which one we're talking about.
22 JUDGE LESNICK: Which one do you believe you're
23 talking about?
24 THE WITNESS: I believe the first time I met him.
25 JUDGE LESNICK: Okay.
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1 BY MR. McDERMOTT:
2 Q All right. So the first time you met him he bares
3 his soul about he wants to move? Get a new job?
4 A No.
5 Q Well, what did you have, let's get to the first
6 conversation. What did he say to you and what did you say to
7 him?
8 A First of all I introduced myself to all my employees
9 when I came on board. So --
10 Q And did you do that individually?
11 A Yes, I did.
12 Q All right. So this would have been the first
13 conversation with Mr. Shirani?
14 A That is correct.
15 Q And you introduced yourself to all 11 SES people
16 individually?
17 A I believe I did, yes.
18 Q You believe or you did?
19 A Well, the group travels a significant amount of their
20 time performing inspections. I don't recall whether I met all
21 of those people within that immediate time frame that I'm
22 referring to. Some of them could have been traveling.
23 Q So you may not have met everybody in SES?
24 A That's possible.
25 Q But you had already decided to downsize?
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1 A I believe I said that within 45 to 50 days I did an
2 assessment as to how many evaluations they were performing and
3 the number of people that it takes to perform those
4 evaluations.
5 Q So you did check into Mr. Shirani's work, correct?
6 A As far as, what's your question?
7 Q Well, you said you checked into each of these
8 people's number, each person's evaluations, is that correct?
9 A No.
10 Q The numbers of audits I take it?
11 A That's correct.
12 Q Or inspections?
13 A Right.
14 Q And then you knew how many vendors Mr. Shirani
15 supervised and monitored, correct?
16 A I asked Mr. Russ Bastyr to put together an
17 analysis --
18 Q That's not, please, did you know how many vendors
19 Mr. Shirani supervised?
20 A Yes.
21 Q How many?
22 A I don't have that number with me right now.
23 Q All right. Do you know what band or level of
24 suppliers Mr. Shirani personally was responsible for auditing?
25 A Yes, I do.
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1 Q Who were they?
2 A They were high quality type vendors. They were all
3 safety related type companies and they were all materials in
4 which performed safety type material requirements.
5 Q Did anybody else have a similar workload as
6 Mr. Shirani?
7 A I believe when I performed the evaluation that the
8 workload was evenly distributed throughout for the given year
9 and the number of audits that have to be performed.
10 Q All right. Who was monitoring Westinghouse at that
11 time?
12 A I don't recall.
13 Q Who was monitoring Holtec/U.S. Tool and Die at that
14 time?
15 A Let me say that we have approximately 932 suppliers
16 that fall into our radar screen. I cannot specifically sit
17 here and designate which individuals in my group are
18 responsible for which suppliers.
19 Q Let's get back to that first conversation. You
20 introduced yourself to Mr. Shirani, is that correct? That's
21 why you had this first conversation?
22 A Yes.
23 Q What did he say to you and what did you say to him?
24 A I think Mr. Shirani had talked about some of the
25 things that he had done for the organization and my point was
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1 to just get a general introduction with all the employees.
2 Q All right. So that's the substance of the first
3 conversation?
4 A I believe so.
5 Q So it was strictly related to and it's fair to say
6 Oscar's pretty proud of the work he does, right?
7 A Uh-huh.
8 Q And he wasn't ashamed to show that pride to you,
9 correct?
10 A And I wouldn't expect any of the employees to take a
11 different approach.
12 Q All right. So his conversation with you was
13 unremarkable? As a manager from your perspective?
14 A It, I, that was, it's a value call and I didn't form
15 any opinions at that time.
16 Q All right. So this is September, October, November,
17 right? September, October time, correct? Is that correct?
18 A That's correct.
19 Q Did he tell you he had just completed a U.S. Tool and
20 Die/Holtec dry cask storage audit that identified very, very
21 serious problems with respect to your storage of spent fuel
22 lines?
23 MR. GROSS: I'll object to the argumentative nature
24 of the question.
25 JUDGE LESNICK: I'll allow it.
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1 BY MR. McDERMOTT:
2 Q Did he tell you about it?
3 A I think he mentioned to me that there was a series of
4 issues which is no different than some of the other
5 manufacturers in which we have what is called nonconformance.
6 Q Did he tell you about Holtec/U.S. Tool and Die dry
7 cask storage problems at Dresden? Did he tell you that he
8 every other week met with a dry cask storage supervisory group?
9 Did he tell you those things?
10 A I believe he did.
11 Q So you were certainly aware of this safety issue,
12 correct?
13 A Well, no different than any of our suppliers, okay.
14 Any of the suppliers that provide safety related materials for
15 the nuclear industry fall in the same realm of concern and to
16 make sure that they do conform to all of the specifications.
17 Q How many other people told you about similar safety
18 related issues as you went around and maybe met all of the 11
19 SES evaluators?
20 A In any given instance throughout any time period
21 manufacturers have anomalies in their manufacturing process.
22 The whole purpose of this group is to make sure than
23 nonconformance is minimized if not down to zero, okay. For any
24 materials that are supplied in the nuclear industry that are
25 rated in a safety related classification.
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1 Q Did you ever read the audit report?
2 A No.
3 Q Are you familiar with audit reports?
4 A Yes.
5 Q Safety related issues?
6 A Yes. I've seen --
7 Q Did you do that at Chicago Bridge?
8 A No.
9 Q So this is something you're learning in September of
10 the year 2000, is that correct?
11 A I stand to be corrected.
12 Q How so?
13 A I'm familiar with the nuclear industry in my former
14 jobs. CBNI was a manufacturer of a lot of the pressure vessels
15 that are supplied in the nuclear industry, I was also
16 responsible for our manufacturing facility. They too had an N
17 staff which designates that they have the capabilities of
18 producing nuclear.
19 Q So this first meeting occurred in the first
20 September, October time frame and then you had another meeting
21 with, when Oscar tells you about his career prospectus?
22 A Correct.
23 Q Where was that meeting?
24 A That meeting was also in the Downers Grove facility.
25 Q Do you know where in the Downers Grove facility?
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1 A I would either surmise it was either in my office or
2 in a conference room.
3 Q When you say surmise does that mean you don't
4 remember where?
5 A Well, it would only take two places. Most of the
6 employees are in cubicles.
7 Q Right.
8 A And when I would deal with an employee I would try to
9 be in a confined area.
10 Q All right.
11 A The two confine the areas that I would be most likely
12 to meet with employees instead of an open area would be in a
13 conference room or in my office.
14 Q So you're surmising. Do you remember where it was
15 you had this second conversation with Mr. Shirani?
16 A Like I said the answer to my question was either in a
17 conference room or in my office.
18 Q Do you remember now this is not September or October,
19 this is later, is that correct?
20 A I would assume it was sometime in October or November
21 time frame.
22 Q But you don't remember exactly?
23 A No, I do not.
24 Q Do you ever take notes of these meetings?
25 A No, I do not.
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1 Q But you have a pretty substantial recall of what was
2 said, right?
3 A I don't know what you consider substantial.
4 Q Well, you say Oscar told you he was looking for and
5 had a job offer did you say?
6 MR. GROSS: Objection. Mischaracterization of his
7 testimony.
8 BY MR. McDERMOTT:
9 Q Well, what did he say to you? What did Oscar tell
10 you at the second meeting?
11 A Oscar was informing me that he was seeking
12 opportunity --
13 Q What did he say?
14 MR. GROSS: Excuse me. He's answering your question.
15 MR. McDERMOTT; No, he's not.
16 MR. GROSS: Objection.
17 JUDGE LESNICK: That's all right. Go ahead.
18 THE WITNESS: Oscar indicated to me that he was
19 seeking some opportunities specifically to a higher grade level
20 in the organization. And that he was good friends with Ruth
21 Ann Gillis, okay.
22 BY MR. McDERMOTT:
23 Q Well, but if you're going to quote what somebody says
24 they don't say Oscar was. What did he say, what were his words
25 as you remember them?
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1 A I'm just told you. I just answered that question.
2 Q No. You gave me a third person analysis. What were
3 the words? Like I'm saying to you now. Please recall his
4 exact words.
5 A To the best of my recollection Oscar approached me
6 and said he was exploring an opportunity in the finance area.
7 Q And he told you he was a good friend of --
8 A Ruth Ann Gillis.
9 Q And you knew who Ms, Ruth Ann Gillis was?
10 A At the time Ruth Ann Gillis was CFO of the
11 organization.
12 Q That's not my question. At the time you knew who she
13 was, correct?
14 A That's correct.
15 Q Thank you. And now you've already answered who she
16 was in fact, right. I don't need to ask that question.
17 What did you exactly say to him?
18 A I mentioned to Oscar that his technical skills versus
19 a finance position and indicated that it didn't look like to me
20 that it was a job in which he was best suited for.
21 Q So you were trying to tell him, I'm sorry. You told
22 him don't go there?
23 A No. Just the contrary. I was trying to engage in
24 some discussion in which he would in turn he came back and
25 informed me that they were planning on providing him extensive
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1 amount of training to get him facilitated to be able to do that
2 particular position.
3 Q This is in the same conversation?
4 A That's correct.
5 Q So there had been a promise of training sometime in
6 October or November --
7 MR. GROSS: Objection. Mischaracterization of his
8 testimony.
9 JUDGE LESNICK: Well, it's cross. You can disagree.
10 MR. McDERMOTT: Thank you.
11 BY MR. McDERMOTT:
12 Q So Oscar is telling you that they, whoever they are,
13 are going to train him, correct? Extensively, correct? He
14 told you that right?
15 A That's what I just said.
16 Q Okay. Is that correct? I want to get your testimony
17 down straight.
18 MR. GROSS: Yes. He's answered the question
19 straight. I object to the argument.
20 JUDGE LESNICK: I'll allow it. Go ahead.
21 MR. McDERMOTT: Thank you.
22 BY MR. McDERMOTT:
23 Q And what did you say to that?
24 A When an employee is seeking opportunities, any of my
25 employees, I don't discourage nor I encourage an individual to
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1 seek a particular job that I may interrupt not being an ideal
2 fit. I think that's an individual's decision.
3 Q I didn't ask you what your world view was. No --
4 request. What did you say to him, not what you felt about
5 employees coming to you and how you felt your obligation to
6 counsel them was. What did you say to him.
7 A That was the end of the conversation.
8 Q So you didn't say anything?
9 A Nope.
10 Q So you didn't tell him anything? Right? You just
11 testified here how you feel about people who tell you these
12 things, right?
13 MR. GROSS: Objection.
14 MR. McDERMOTT: Thank you. No other questions.
15 REDIRECT EXAMINATION
16 BY MR. GROSS:
17 Q And Mr. Yessian, you testified also as to the
18 information you provided Mr. Shirani about the possible
19 opportunity to come back, correct?
20 A Yes, that's right.
21 Q You informed him of that in that conversation,
22 correct?
23 A Yes, I did.
24 MR. GROSS: No further questions.
25 RECROSS EXAMINATION
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1 BY MR. McDERMOTT:
2 Q Well, now I'm going to have to ask some more.
3 This is the second conversation. You just now less
4 than a minute ago told me he shared some information with you
5 and then that was it. But now after being reminded of what
6 your testimony should be you'll telling the Court that you gave
7 him a warning. Is that right?
8 A You're categorizing this as a warning. I'm not sure
9 I understand what --
10 Q You just told him if you go you're not coming back.
11 There won't be any place for you. That's a warning isn't it?
12 A I believe I indicated that the program is to reduce
13 the number of people in my group.
14 Q Oh, it's during this conversation that you tell him
15 you're reducing from 11 to 7, that you made that decision?
16 A Yeah. That was made as I mentioned earlier in this
17 testimony sometime in the October time frame.
18 Q And you made that decision?
19 A That's correct.
20 Q And you had announced that to everybody in the SES
21 organization? And all these 11 people are now in October
22 knowing that they're going to lose four of their brothers?
23 They know that, right?
24 A Well, I'm not sure what you categorize as the word
25 announce, okay. Did I publish a paper that says I'm reducing
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1 the staff or did I talk to Russ Bastyr and come to a conclusion
2 with management --
3 Q When you say --
4 A -- then come back, I think you've got to have a
5 little crystal clarity to the way you posed your question.
6 Q Well, then let me pose it very directly. You told
7 him in November, am I correct, that you were going to reduce
8 SES from 11 to 7 people?
9 A That's correct.
10 Q And had you told any other employees other than Russ
11 Bastyr that you were going to do that?
12 A I don't recall.
13 Q You don't recall?
14 A No.
15 Q Would you be going around, is that a good management
16 posture to go and tell employees one of 11 before you are going
17 to be no longer with us that we're downsizing?
18 A I act when there's a decision, and I hadn't made the
19 decision as to how we were going to reduce is the fact there
20 wasn't enough work to support the engagement of 11 individuals.
21 Q Well, you made the decision?
22 A Through the analysis performed by Russ Bastyr.
23 Q Well, okay so it was his recommendation to you?
24 A It was his analysis that was performed. The data
25 speaks for itself.
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1 Q So does Mr. Bastyr, right?
2 A I don't know --
3 MR. GROSS: I'll object to the rhetoric.
4 MR. McDERMOTT: Well, let me --
5 JUDGE LESNICK: Overruled.
6 BY MR. McDERMOTT:
7 Q Let me just ask. Did you tell any other employees
8 other than Mr. Shirani that Mr. Bastyr had looked at all of
9 their performances and looked at all of their work and that he
10 had recommended to you and the data speaks for itself that
11 there should be a downsizing?
12 A No, you're making a connection between performance of
13 employees versus workload and I think there's a great
14 differentiation between that.
15 Q Okay.
16 A This wasn't an issue of performance of employees.
17 Q All right. So your 900 plus vendors would not require
18 11 SES employees, correct?
19 A On the number of annual audits needed to perform
20 that's correct.
21 Q All right. So are you familiar with something called
22 NUPIC?
23 A Yes, a little bit.
24 Q A little bit. Do you know what NUPIC stands for?
25 A No.
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1 Q Do you know what NUPIC does?
2 A In an over large perspective, yes.
3 Q What does it do?
4 A Provides a vehicle for outside evaluations performed
5 by multiple parties.
6 Q And isn't it precisely an organization to which your
7 company belongs that meets regularly? Mr. Bastyr's in fact a
8 representative. They decide on annual audits running employees
9 like Mr. Shirani, like Mr. Bastyr I take it, to do audits of
10 safety related issues for vendors that all of them use and that
11 they share these audits between themselves and that they keep
12 each other informed as to problems that develop with vendors?
13 Is that essentially it?
14 A That's the objective of the program.
15 Q You're sure you told Mr. Shirani that you were
16 downsizing and that if he left there wouldn't be a job for him
17 when he came back?
18 A That is correct.
19 Q And used those or similar words?
20 A Similar words.
21 Q And what did Mr. Shirani say to you in response to
22 that?
23 A I can't recall specifically what his response was.
24 Q Was that the last conversation you had with
25 Mr. Shirani?
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1 A There was probably some informal discussions based on
2 some other participations at the Asian, various meetings that I
3 attend as it relates to the diversity objectives of the
4 organization.
5 Q Is that AACES?
6 A That's correct.
7 Q Was Mr. Shirani active in AACES after the November
8 time frame that you had this conversation?
9 A I don't know his level of being active at that time.
10 Q Did you and he attend these AACES events after this
11 conversation?
12 A I try to attend as many as I can.
13 Q Did you and he attend anything together after this
14 conversation you had in November --
15 A I can't recall.
16 Q So you don't remember seeing or talking to him again?
17 A No.
18 Q So this second conversation could have been the last?
19 A Possibly.
20 MR. McDERMOTT: Thank you.
21 MR. GROSS: I have nothing to ask him.
22 BY JUDGE LESNICK:
23 Q Mr. Yessian, when you informed Mr. Shirani about the
24 intended downsizing, did you talk to him about how you intended
25 to downsize?
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1 A No, I did not.
2 Q Did you talk about whether it would be through
3 attrition or through actual removing of anyone?
4 A No, I did not.
5 Q If I'm Mr. Shirani and you're telling me this, could
6 I have, would I be correct in that I could take two meanings
7 from it? One is your telling me I can't have, I won't have a
8 job if I leave to come back to. Or that I'm out of a job if I
9 stay? Would that be fair either way?
10 A No, I think it would be the former rather than the
11 latter that he wouldn't have an opportunity to come back.
12 Q That's the meaning you hoped to convey?
13 A Correct, right.
14 Q But if he thought you were saying, well, I mean I
15 wouldn't have a job I stay because you're downsizing, did you
16 say anything to him that would contradict that?
17 A No. As a matter of fact, yeah, I did say something.
18 I said by all means we value your service in the organization.
19 So there was no indications that his performance was in, in
20 question.
21 Q In fact how did you downsize? Through attrition or
22 did you remove anyone?
23 A Predominately through attrition?
24 Q You did remove some people?
25 A I believe there is one person that we removed.
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1 Q Okay.
2 JUDGE LESNICK: All right. Does that raise any
3 questions?
4 MR. GROSS: No, Your Honor.
5 MR. McDERMOTT: Thank you, Judge.
6 JUDGE LESNICK: Thank you --
7 MR. GROSS: I'll get our next witness.
8 JUDGE LESNICK: Off the record.
9 (Off the record.)
10 (On the record.)
11 JUDGE LESNICK: Raise your right hand please.
12 (Whereupon,
13 MARTHA GARZA
14 was called as a witness by and on behalf of the Respondent, and
15 after having been first duly sworn, was examined and testified
16 as follows:)
17 JUDGE LESNICK: You may question the witness.
18 DIRECT EXAMINATION
19 BY MR. GROSS:
20 Q Ms. Garza, can you please state your full name and
21 spell your last name for the record?
22 A Certainly. Martha Garza, G-a-r-z-a.
23 Q And what is your current position?
24 A I am human resources manager for the corporate
25 center. Business Services Company.
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1 Q And you've been in that position since when?
2 A Merger date October 23rd, 2000.
3 Q Can you describe what duties you have in that
4 position?
5 A I am responsible for recruiting, for multiple aspects
6 of human resources, performance management, succession
7 planning, leadership development. Mainly recruiting internal
8 and external.
9 Q Have you ever had any job assignment in ComEd's
10 nuclear operations or Exelon Nuclear?
11 A Never.
12 Q Can you please turn to Exhibit 19 in the binder,
13 Respondent's Exhibit 19. And can you please identify that
14 document for us?
15 A This is an internal resume from our people's soft HR
16 system. And it gives job history for our employees.
17 Q Whose internal resume is this?
18 A This is Oscar Shirani's.
19 Q Would you please look at the first page of
20 Respondent's Exhibit 19 and specifically do you see his salary
21 grades identified under the various positions?
22 A Yes.
23 Q There is a 07 up through 09. Can you describe for us
24 what the system was in place during that time period?
25 A During that period we had a numeric salary grade
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1 system 1 through 24. So Oscar was a level, various levels
2 throughout that period of time.
3 Q And it indicates a change to an E salary grade in
4 January of 2000. Can you explain what occurred there?
5 A During that time period we changed our salary grades
6 from numeric to alpha so the E that Oscar became at that time
7 was equivalent to the 9.
8 Q How many employees did this change apply to?
9 A All of the exempt employees.
10 Q Did any reduction in pay accompany that change?
11 A No.
12 Q The second page, Exhibit 19, on the top contains a
13 salary history. What is that?
14 A This actually gives the annual salary and any
15 movement that took place with that salary during an employee's
16 history.
17 Q And then the job performance section down below on
18 the second page tells you what?
19 A That is the actual performance rating that's given to
20 employees.
21 Q Overall performance rating?
22 A Yes. Annual performance rating, correct.
23 MR. GROSS: Move to admit Respondent's Exhibit 19.
24 JUDGE LESNICK: Any objection?
25 MR. McDERMOTT: No objection, Judge.
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1 JUDGE LESNICK: Admitted.
2 (Whereupon, the document referred
3 to as Respondent's Exhibit No. 19
4 was marked and received into
5 evidence.)
6 BY MR. GROSS:
7 Q Could you please turn to Respondent's Exhibit 20 and
8 ask you if you recognize this document?
9 A Yes.
10 Q What does this describe?
11 A This is the mapping of the old salary band structure
12 and the equivalent new salary bands under the Exelon model.
13 Q And when did these changes to the Exelon model go
14 into place?
15 A At merger day one.
16 Q Under Unicom band in this document there's some
17 letters indicated. What are those?
18 A That was the previous salary band structure for
19 Unicom prior to the merger.
20 Q And where was Mr. Shirani's salary grade in this
21 Unicom band structure as reflected on Respondent's Exhibit 20?
22 A He was a salary grade E.
23 Q What did that translate to at the time of the merger?
24 A A salary band 3.
25 Q The internal resume has an E-3 indicated on October
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1 23, 2000. Can you explain the E in front of the 3?
2 A Certainly. All of our employees aren't on this new
3 system. The E designated exempt employees as opposed to
4 nonexempt employees.
5 Q And the 3 reflected on Respondent's Exhibit 19
6 correspondents to the Roman Numeral three on the lefthand side
7 of Respondent's Exhibit 20?
8 A Yes.
9 MR. GROSS: Move to admit Respondent's Exhibit 20.
10 MR. McDERMOTT: No objection.
11 JUDGE LESNICK: Admitted.
12 (Whereupon, the document referred
13 to as Respondent's Exhibit No. 20
14 were marked and received into
15 evidence.)
16 BY MR. GROSS:
17 Q Was Mr. Shirani ever demoted from E-4 to E-3?
18 A No.
19 Q Could you please turn to what had been marked as
20 Complainant's Exhibit 19 and I will put one in front of you.
21 It's in a different binder. I'll hand this to you.
22 Can you tell me what kind of document that is?
23 MR. McDERMOTT: Can I ask you? Counselor, do I have
24 it?
25 MR. GROSS: It's Complainant's Exhibit 19.
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1 MR. McDERMOTT: Oh, all right.
2 MR. GROSS: Yes. I don't have an extra copy.
3 BY MR. GROSS:
4 Q I'm sorry. Could you please explain what that is?
5 A This is an overall compensation summary that shows an
6 employee's basic compensation. Their annual target and a
7 quarterly incentive that they participate in. So this is
8 Oscar's compensation summary specifically for a one year.
9 Q What organization generated that document?
10 A This comes out of HR the compensation department.
11 Q And which company's HR did that come out of?
12 A This would have come out of the Business Services
13 Company.
14 Q Is that part of your HR organization?
15 A Yes.
16 Q Is this a standard document generated for all
17 employees?
18 A Yes.
19 Q What does this actually reflect?
20 A This reflects performance for the year 2000 and
21 proposed compensation for the new year 2001.
22 Q What is the earliest possible date that document
23 could have been generated?
24 A Traditionally this is at the end of our compensation
25 process so late February, very late February 3rd to 4th week in
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1 February for the previous year.
2 Q And when after a performance evaluation rating is
3 assigned for a calendar year is that document generated? How
4 long after?
5 A Normally six to seven weeks.
6 Q I'd like to direct your attention now to the fall of
7 2001. Can you tell me how you were involved in Ms. Caya's
8 restructuring of the internal audit organization at that time?
9 A As the HR manager I supported Ellen in, supported and
10 administered the process to fill open positions in the internal
11 audit department.
12 Q And when you say support what do you mean?
13 A I had responsibility for the internal posting
14 process. I had responsibility for scheduling interviews and
15 coordinating all of that for a hiring manager.
16 Q Would you please turn to Respondent's Exhibit 4 in
17 the binder.
18 Do you recognize this e-mail?
19 A Yes.
20 Q If you could turn to the second page of Respondent's
21 Exhibit 4. Tell me whether that reflects that dates that were
22 determined for the application process during that
23 restructuring?
24 A Yes. Those are accurate dates.
25 Q What date were the jobs posted for the positions?
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1 A Friday, October 5th.
2 Q And what was the deadline for applying for those
3 positions?
4 A Jobs were posted for 10 days so the applications
5 would have been received through Tuesday, October 16th.
6 Q How did you first become involved with Mr. Shirani in
7 the context of this particular restructuring process?
8 A Mr. Shirani phoned me prior to the posting being
9 official. Ellen had been very good about keeping all of her
10 employees or current employees informed of the process that we
11 would be using to fill jobs.
12 Oscar phoned me the night before October 5th, it was
13 a Thursday night and said that he was aware that the jobs would
14 be posted the next day and he wanted specifically to talk about
15 the manager position.
16 Q What did he say?
17 A He said that based on the criteria as outlined in the
18 posting that he didn't think that he met the criteria as
19 outlined. I encouraged him to apply even though he didn't feel
20 that he met the criteria. I encouraged him to at least go
21 through the interview process and present his qualifications
22 and, and have the discussion with Ellen.
23 Q Why would you recommend he apply if he did not
24 believe he was qualified to meet the requirements?
25 A I mean clearly during an interview process you're
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1 able to sell yourself and present those things that you feel
2 might be important to indicate that you can do a job. So he,
3 he specifically mentioned a CPA, he wasn't a CPA. But a CPA
4 would not be the only criteria that you would need to
5 successfully do the job. So that's why I encouraged him to, to
6 apply.
7 Q What did he tell you in conversation about his
8 interest in any position other than the E-4 manager job?
9 A He, he was adamant that his current salary was very
10 close to the maximum of the next lower job, an E-3 position.
11 And he didn't want to go to a lower job because his salary was
12 so close to the maximum already and he didn't want to take a
13 demotion or a cut in pay.
14 Q How did you respond to that?
15 A That he should apply for those jobs that he thought
16 he was qualified to do.
17 Q Did you provide him any information in that
18 conversation about that salary issue and his current salary
19 being close to the top of the E-3?
20 A I don't recall.
21 Q What was the policy with respect to positions you
22 could be considered for during this process?
23 A You could be considered for any position that you
24 applied for.
25 Q During this process was anyone considered for a
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1 position for which that person did not apply?
2 A No.
3 Q Do you recall a meeting with Mr. Shirani on October
4 26th regarding his termination?
5 A Yes.
6 Q Who was there?
7 A Oscar, Ellen Caya and myself.
8 Q And from your perspective what was the purpose of the
9 meeting?
10 A The purpose was to inform Oscar that he had not been
11 selected for the position for which he had applied, the E-4
12 manager. And consequently because he didn't apply for any
13 other position and was not selected for that specific position
14 he then became eligible for merger severance benefits as a
15 result of that.
16 Q Turn to Respondent's Exhibit 33 please.
17 I ask if you recognize that document?
18 A Yes.
19 Q Who presented this to Mr. Shirani at that October
20 26th meeting?
21 A Ellen and I both. I, I went through the details of
22 the contents of the letter.
23 Q And does this accurately set forth the terms that
24 were given to Mr. Shirani on his termination?
25 A Yes.
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1 MR. GROSS: I believe Respondent's Exhibit 33 is
2 already in evidence, Your Honor.
3 JUDGE LESNICK: Off the record.
4 MR. GROSS: I just want to make sure.
5 (Off the record.)
6 (On the record.)
7 BY MS. GROSS:
8 Q Ms. Garza, if you could refer to the second page at
9 the top it refers to outplacement service. Can you tell me
10 what that service is?
11 A All of our employees that are eligible for severance
12 benefits also are given an opportunity to participate in
13 outplacement support services through an external vendor that
14 we contracted with.
15 Q And that is a service available where physically?
16 A The Dersten Group is a company that has offices
17 located throughout the Chicagoland area with some in the
18 western suburbs, in the northern suburbs and even in downtown.
19 Q And do employees or former employees have access to
20 ECOS through that service?
21 A Yes, they do. They have access through the web and
22 then also through a toll free number to access any jobs that
23 may be open in our internal posting process.
24 Q If you could turn now to Respondent's Exhibit 21.
25 Did you receive a copy of the e-mail on the bottom portion of
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1 that first page of Respondent's Exhibit 21 which is an e-mail
2 from Mr. Shirani to Mr. Rowe dated October 30th, 2001?
3 A Yes.
4 Q Okay. Can you tell me what date you received that?
5 A On October 30th.
6 Q What information did you receive regarding others who
7 had received this e-mail as well?
8 A I received the e-mail and while I was reading the
9 e-mail I think I started to get telephone calls from various
10 folks throughout the company asking about the e-mail and I was
11 somewhat surprised because they weren't copied on the e-mail
12 but they shared with me that they had been blind copied on the
13 e-mail and it was members of the various employee network
14 groups that were calling me asking about this.
15 Q What decision was made because this e-mail was sent?
16 A We decided, Ellen and I decided that we needed to set
17 up a meeting with Oscar immediately to address this issue and
18 to in essence to begin the transition process to transition his
19 existing work and allow him to move on to the outplacement
20 services that had been offered to him.
21 Q If you could turn to Respondent's Exhibit 22 please
22 and I'll ask you if you recognize that document?
23 A Yes.
24 Q Who prepared these notes in Exhibit 22?
25 A I did. They're my notes.
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1 Q And what do they reflect?
2 A The meeting that took place with Oscar on the
3 afternoon of October 30th.
4 Q That meeting took place after the?
5 A After the e-mail, correct.
6 Q And how long after you received that e-mail, excuse
7 me. How long after the meeting itself did you prepare these
8 notes?
9 A Immediately. That afternoon.
10 Q And this accurately sets forth what happened in that
11 meeting?
12 A Absolutely.
13 Q Can you tell me what happened that lead to security
14 coming?
15 A The, the intent was to get Oscar to begin to
16 transition his work to other members of the internal audit
17 department. He was at a point in his audit project that it
18 would be simple enough for him to transition over. We wanted
19 to give him an opportunity to avail himself of the outplacement
20 services.
21 Oscar became very belligerent and confrontational
22 during that meeting and indicated that we could not remove him
23 that, that he didn't have to leave the property that we needed
24 a court order to remove him from the property. That it was his
25 right to stay on the property. That he was an employee and I
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1 confirmed with him that he would remain on the payroll through
2 the end of his transition period but that it was in the
3 company's best interest that he go to outplacement and start
4 the search internal or external for another position.
5 Q Who made the decision to call security if you recall?
6 A Ellen specifically.
7 MR. GROSS: Move to admit Respondent's Exhibit 22.
8 MR. McDERMOTT: No objection.
9 JUDGE LESNICK: Any objection? Admitted.
10 (Whereupon, the document referred
11 to as Respondent's Exhibit No. 22
12 was marked and received into
13 evidence.)
14 BY MR. GROSS:
15 Q If you could please turn to Respondent's Exhibit 25.
16 I'll ask you if you recognize that document?
17 A Yes.
18 Q What is that?
19 A This is also from our internal PECO soft system, our
20 HR system that we use to document any changes.
21 Q Whose information is contained in Exhibit 25?
22 A An Edward Netzel.
23 Q Who maintains this database?
24 A The HR shared service center that processes all
25 transactional work for human resources.
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1 Q When did Mr. Netzel leave and under what
2 circumstances?
3 A He left on August 25th, 1998 and he retired under a
4 severance package.
5 MR. GROSS: Move for the admission of Respondent's
6 Exhibit 25.
7 JUDGE LESNICK: Any objection?
8 MR. McDERMOTT: No objection, Judge.
9 JUDGE LESNICK: 25 admitted.
10 (Whereupon, the document referred
11 to as Respondent's Exhibit No. 25
12 was marked and received into
13 evidence.)
14 BY MR. GROSS:
15 Q Other than Mr. Shirani did anyone from Exelon Nuclear
16 ever tell you anything about any activities he engaged in or
17 work he did in Nuclear?
18 A No.
19 Q Did anyone ever direct you, ask you or even suggest
20 to you that you or Exelon BSC fire Mr. Shirani.
21 A No.
22 MR. GROSS: No further questions.
23 JUDGE LESNICK: You may cross, Mr. McDermott.
24 MR. McDERMOTT: Thank you, Your Honor.
25 CROSS EXAMINATION
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1 BY MR. McDERMOTT:
2 Q Ms. Garza, with respect to Exhibit No. 25 it is not
3 uncommon is it that people have a retirement date that
4 physically separate from their place of work within a company,
5 within Exelon or within Commonwealth Edison prior to that date?
6 A The system will reflect the date that they
7 terminated.
8 Q I understand that. That's, I understand the date of
9 termination either by dismissal or retirement or resignation
10 being fixed. That's the termination date for Mr. Netzel?
11 A Right.
12 Q 8/31. But it's quite possible that he left his work
13 site a month or two months or even three months earlier, is
14 that possible?
15 A It's possible.
16 Q And you wouldn't have known whether he did or didn't?
17 A I would not, no.
18 Q All right. And you have nothing in your possession
19 or nothing in your software package that would access that or
20 be able to tell you that? I mean the person's chair is no
21 longer warm, they're gone. You only know when it is they
22 separate from the company pursuant to this software package,
23 correct?
24 A That's correct.
25 Q Thank you. You were present with Ms. Caya when Oscar
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1 was told that he was not selected for the manager's position,
2 is that correct?
3 A Yes.
4 Q Did you have a conversation with him the next day as
5 well? You and Ellen?
6 A No.
7 Q Did he ever have a conversation with you where he
8 said, all right I'll take an E-3 job? And did you in fact
9 respond to him or you and Ellen respond to him, we'll think
10 about it?
11 A I don't recall.
12 Q Is it possible?
13 A It may be possible but I don't recall.
14 Q Is it possible that if that happened outside of your
15 recollection that the next time you and Ellen met with him you
16 said we can't do it because of the deadline?
17 A No.
18 Q Is it possible you just said we can't do it period?
19 A If he didn't apply for a position he would not have
20 been considered for it.
21 Q Is that what you told him the next day? If you could
22 recall that conversation?
23 MR. GROSS: Objection. It calls for speculation.
24 MR. McDERMOTT: I'm not phrasing it correct.
25 BY MR. McDERMOTT:
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1 Q You say you can't recall whether or not you and Ellen
2 said you would think about his request to be considered for the
3 E-3 position? I'm saying you can't recall that?
4 A Correct.
5 Q There was never any further discussion about the E-3
6 position?
7 A The discussion that Oscar and I had about positions
8 lower than the manager position he was totally against even
9 considering.
10 Q But that was earlier, correct?
11 A That was earlier. That was, that was the discussion
12 that Oscar and I had.
13 Q Earlier than his termination?
14 A Yes.
15 Q That's the discussion he initiated with you on or
16 about the 5th of October?
17 A Correct.
18 Q Thank you. Now turning to Exhibits 19 and 20
19 MR. GROSS: Respondent's Exhibits I assume?
20 JUDGE LESNICK: Is that correct?
21 MR. McDERMOTT: I guess you're talking about, yes.
22 Judge, Respondent's Exhibits.
23 BY MR. McDERMOTT:
24 Q How long have you been with Exelon?
25 A 31 years.
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1 Q So you've been there for all the names and all the
2 presidents and all the rocking and all the rolling?
3 A Yes.
4 Q Isn't true that the numerical bands at least in the
5 parlance and the common knowledge of the employees and of
6 course employees watch these events like birds of prey,
7 correct?
8 A Certainly.
9 Q Isn't it true that seven, level seven alpha, I'm
10 sorry, in Arabic seven and eight translated to E-3 and Arabic
11 nine and ten translated to E-4? I mean wasn't that the common
12 understanding among the workers that if you had, if you were a
13 level E-9 you were going to be, I'm sorry, a level 9 you would
14 become a level E-4?
15 MR. GROSS: Objection as to a request she testifies
16 as to what others commonly understood.
17 JUDGE LESNICK: I'll allow the question.
18 THE WITNESS: Would you ask the question again,
19 please?
20 MR. McDERMOTT: Sure.
21 BY MR. McDERMOTT:
22 Q I'm looking at something that has to do with the year
23 2000. Obviously the October time frame.
24 A Uh-huh.
25 Q Obviously trying to create an equilibrium for the
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1 people in Philadelphia and the people in Illinois so that
2 everybody in the merging situation believes that at least they
3 have the information as to how people were being treated on
4 either side of the Ohio, right?
5 A Uh-huh.
6 Q But what I don't have between this 20 and this 19 is
7 the 1,2,3,4,5 and the translation document. And what I'm
8 asking you is isn't it true that if you were either a seven or
9 an eight under the Arabic system you would become an E-3?
10 There's no room for, there's not enough alphas for every seven
11 or every eight, do you understand what I'm saying?
12 A I do.
13 Q Wouldn't it take two numbers to make a letter?
14 MR. GROSS: I'll object as to the --
15 MR. McDERMOTT: She knows what I'm asking her.
16 MR. GROSS: I would asked for some time frame
17 because --
18 JUDGE LESNICK: Do you understand what
19 he's --
20 BY MR. McDERMOTT:
21 Q In the years '99 prior to the merger?
22 A Prior to the merger when we went from the old bands 1
23 through 24.
24 Q Right.
25 A And then we went to the new structure there was some
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1 consolidation of bands.
2 Q All right. And did the consolidation seven and eight
3 translate to an E-3?
4 A I can't recall. I can't recall.
5 Q Right. It's not here, correct?
6 A It's not part of this document, correct.
7 Q That's right. So is there such a document that would
8 tell us that? I mean at this point it would be a historical
9 event, hysterical. It would be something that is long since
10 abandoned, correct?
11 A That's correct.
12 Q And it's something that's probably best forgotten
13 since there's a merger, correct?
14 MR. GROSS: I'll object.
15 JUDGE LESNICK: I'll --
16 MR. McDERMOTT: This woman has been there for than
17 three decades. She has seen all manner of events and the
18 repercussions of what the numbers translate into letters mean.
19 BY MR. McDERMOTT:
20 Q Isn't it true that if you were a seven or an eight
21 when you made that transition to the alphas you became an E-3?
22 And if you were a nine and a ten you became an E-4?
23 MR. GROSS: Objection. Mischaracterization of her
24 testimony.
25 MR. McDERMOTT: It's not --
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1 MR. GROSS: It's incorrect. She didn't say that.
2 THE WITNESS: I, I don't recall. There was some
3 overlap but I don't recall how they mapped to the new
4 structure.
5 BY MR. McDERMOTT:
6 Q You don't recall or you don't want to?
7 A I don't recall. It was not my role. I was not a
8 compensation expert at --
9 Q You were not a compensation expert for the purposes
10 of identifying this document either are you?
11 A That's correct but this is common knowledge in my
12 work.
13 Q Oh, I understand. But when the overlap was common
14 knowledge you knew, correct?
15 A I may have been aware of how they mapped that.
16 Q Well, you would have had a piece of paper just like
17 you have here today, right? It would have shown seven and
18 eights becoming what they are, eights and nines becoming what
19 they are or nines and tens becoming what they are, am I right?
20 You would have had such a document?
21 A I --
22 Q When you made the changes?
23 A Yes. I may have had something, correct.
24 Q And now that that's history you don't remember?
25 A That's correct.
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1 Q But if it happened to him he'd remember wouldn't he?
2 MR. GROSS: I'll object.
3 MR. McDERMOTT: I'm sorry.
4 BY MR. McDERMOTT:
5 Q If it happened to Mr. Shirani --
6 MR. GROSS: I don't know that she can say or not.
7 BY MR. McDERMOTT:
8 Q As a professional human resource functionary,
9 somebody who is in human resources every day, if somebody was
10 at a level nine and the new system was inaugurated and he
11 became an E-3 and he knew that levels nine and ten became E-4s,
12 I'm sorry.
13 And that happened, would he know himself by seeing it
14 on a printout or by seeing it on a CRT of some kind?
15 A Yes.
16 Q All right. So you don't know if happened to
17 Mr. Shirani?
18 A Based on, on the documents here, no, I don't know.
19 Q Based on these documents?
20 A Correct.
21 Q Thank you.
22 MR. McDERMOTT: I have no other questions.
23 JUDGE LESNICK: Any redirect?
24 MR. GROSS: Yes.
25 REDIRECT EXAMINATION
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1 BY MR. GROSS:
2 Q Ms. Garza, when you just answered questions about
3 translating a seven or eight into an E-3 or E-4 you were
4 referring to the October 2000 structure, correct?
5 A That's correct. Prior to the merger.
6 Q And in January of 2000 the change was from a seven,
7 eight or nine to a single letter, correct?
8 A That's correct.
9 Q At any time between January of 2000 and October 2000
10 did any employee, any employee in the system have an E-3 or an
11 E-4?
12 A No.
13 Q During that time period every employee had a single
14 letter, correct?
15 A That's correct.
16 MR. GROSS: No further questions.
17 RECROSS EXAMINATION
18 BY MR. McDERMOTT:
19 Q But my question was and I hope you understand this,
20 the part you can't recall is the, at sometime prior to the
21 merger there was a reconfiguration as well, am I correct?
22 A That is correct.
23 Q And do you have a general idea as to what year that
24 happened?
25 A It took place in 2000.
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1 Q Did it take place in any configuration change in '99?
2 A No.
3 Q Was it only 2000?
4 A That's correct.
5 Q Beginning on January of 2000?
6 A That's when they became effective, yes.
7 Q All right. And prior to January of 2000 we had the
8 numericals?
9 A That's correct.
10 Q So that the record is clear, we had single numbers
11 and then we had single numbers in 1999 and the year 2000 we had
12 single numbers?
13 A No. In the year 2000 we had --
14 Q 2001.
15 A Prior to 2000 we had a numeric system.
16 Q Right.
17 A Effective January of 2000 we went to a single alpha
18 and as of merger --
19 Q A single letter?
20 A That's correct. And as of merger day one --
21 Q October?
22 A October 23rd.
23 Q 2000.
24 A We went to numeric. The alpha designates exempt
25 versus nonexempt.
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1 Q So you either have an E or an N?
2 A An E or an NE.
3 Q An E or an NE?
4 A Correct.
5 Q And exempt means?
6 A Exempt are those employees that are in our
7 professional ratings as opposed to nonexempt are our entry
8 level people, our admin. type people, some low level technical
9 people.
10 Q Thank you.
11 MR. GROSS: Nothing further.
12 BY JUDGE LESNICK:
13 Q Ms. Garza, under the E-3 pay band for which
14 Mr. Shirani, for the pay band for which he was applying, he was
15 apply for E-4?
16 A Right.
17 Q A pay band at the E-3 level. Exhibit 20 shows a
18 maximum pay of $100,000, is that correct?
19 A Yes.
20 Q How do you reach the $100,000?
21 A Several different ways. The salary bands are wide
22 enough to allow movement within a salary band either through
23 enhanced skills, education, various different ways. Salary
24 bands are wide to allow entry from external based on different
25 criteria that new hires bring. Or you can promote into a
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1 salary band that get you into the, the next higher level.
2 Q If you perform your job in a fully satisfactory
3 manner are there automatic pay increases each year?
4 A There is a merit adjustment that is done effective
5 March 1st but we do not have an automatic progression through a
6 salary band.
7 Q So someone has to make a decision to have someone
8 have an increase in pay in that system?
9 A That's correct.
10 Q In that system. Just to analogize it, are you
11 familiar with the federal pay system in any way?
12 A Somewhat. I know that there are salary bands.
13 Q There's more than one but under the GS schedule.
14 This is historical for me also but under that system a person
15 can go from one pay grade to, well, if a person performs really
16 satisfactory then there is a modest increase each year. That's
17 not so in this system?
18 A That is very similar to ours. We do a base salary
19 adjustment once a year.
20 Q But you're saying, but under the federal system it's
21 automatic unless you do poorly. Unless you've been
22 disciplined. Under your system is it automatic? That is no
23 one has to make a decision if someone moves up? Oh, no, you're
24 saying you adjust the pay band?
25 A Absolutely.
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1 Q But, so if you do not adjust the pay band, a
2 reasonable pay increase --
3 A The pay band doesn't get adjusted. We have merit
4 increases based on performance and we adjust within a salary
5 band but a pay adjustment would not necessarily, should not
6 take anybody into the next salary band.
7 Q Oh, no, I understand that. But I'm saying if an
8 employee satisfactorily performs their job is it certain that
9 they'll move up to the maximum within that pay band?
10 A There is no certainly because our bands are so wide,
11 you know, but clearly a salary adjustment or a merit increase
12 would take them into the higher range of a salary band.
13 Q Okay. But the distinction I'm trying to make is that
14 it's not automatic? Someone has to make the decision?
15 A Absolutely. It's performance based.
16 Q Okay. Under the old fashioned GS schedule each year
17 a person gets a few percentage increase and it may go from a
18 first three years is an automatic increase then it goes to two
19 years then it goes to fours years so they don't reach the ten
20 step process for perhaps a whole career if they don't jump from
21 one band to the next, from a GS5 to a 6, or a 6 to a 7.
22 Now to move from one band to the next generally
23 that's, that has to be promotion based on their merit. But
24 then once your within a band you automatically progress on a
25 certain calendar schedule if you're proving satisfactory in
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1 performing the job.
2 A And we don't have that automatic progression.
3 Q Okay. I understand. Now in the pay, what pay band
4 was, if any, or what schedule was Mr. Shirani before this
5 change occurred? I see in Exhibit 19 it says at the tope of
6 the job history at present E-4, is that what he was called
7 then?
8 A Yes, he was an E-4.
9 Q Okay. And that is not the same pay band as on 20?
10 A Yes, it is.
11 Q Okay. So clearly he was going from the higher pay
12 band to the lower pay band?
13 A He went from the lower to the higher.
14 Q I mean if he had applied for an E-3 he would have
15 been going down a pay band?
16 A That's correct.
17 Q And so his range, his potential before this occurred
18 was up to possibly $126,000, is that correct?
19 A That's correct.
20 Q And he was at $97,000 so he was about the middle of
21 the pay band of an E-4?
22 A That's correct.
23 Q Okay. And he was then, if he had applied to E-3 he
24 was moving to the, basically to the top of the E-3?
25 A Yes. And because of our wide salary bands of course
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1 there is overlap between our bands.
2 Q I see. I understand that. Okay. All right. Does
3 that raise any questions for your Mr. McDermott or Mr. Gross?
4 MR. McDERMOTT: No, Judge, thank you.
5 MR. GROSS: No, Your Honor.
6 JUDGE LESNICK: You're excused. Thank you very much.
7 Off the record.
8 (Off the record.)
9 (On the record.)
10 JUDGE LESNICK: Back on the record.
11 MR. GROSS: Ms. Gillis, will you please state your
12 full name?
13 JUDGE LESNICK: Could you raise you right hand?
14 (Whereupon,
15 RUTH ANN GILLIS
16 was called as a witness by and on behalf of the Respondent, and
17 after having been first duly sworn, was examined and testified
18 as follows:)
19 JUDGE LESNICK: Okay. You may proceed.
20 DIRECT EXAMINATION
21 BY MR. GROSS:
22 Q Ms. Gillis, can you please state your full and spell
23 your last name for the record?
24 A Yes. My name is Ruth Ann Mary Gillis, G-i-l-l-i-s.
25 Q What are your current positions?
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1 A Currently I am president, an Exelon Business Service
2 Company.
3 Q Are you an officer of Exelon Corporation?
4 A Yes, I am.
5 Q What position is that?
6 A I am a senior vice president of the Corporation.
7 Q When did you first become a senior vice president of
8 Exelon Corporation?
9 A Upon its organization in October 2000, October 20th
10 of 2000.
11 Q When did you first become president of Exelon BSC?
12 A At the end of October of this year. 2002.
13 Q Prior to becoming president of Exelon BSC what was
14 your position?
15 A I was senior vice president and chief financial
16 officer, an Exelon Corporation.
17 Q And during what time period were you CFO of Exelon
18 Corporation?
19 A October 20th of 2002, the end of October of 2002.
20 Q Prior to the merger that created Exelon Corporation
21 in 2000 what was your position?
22 A I was senior vice president and CFO of Unicom
23 Corporation, the predecessor company of Exelon Corporation.
24 Q What companies merged to form Exelon?
25 A Unicom Corporation the parent company of Commonwealth
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1 Edison and Philadelphia Electric PECO, P-E-C-O.
2 Q Exelon BSC has what corporate relationship to Exelon
3 Corporation?
4 A It is a subsidiary of Exelon Corporation and the
5 acronym BSC stands for Business Services Company.
6 Q Exelon Generation Company, LLC or GENCO has what
7 affiliation with Exelon Corporation?
8 A It is a subsidiary, an Exelon Corporation.
9 Q And Commonwealth Edison Company or ComEd currently
10 has what affiliation with Exelon?
11 A It's a subsidiary also of Exelon Corporation.
12 Q What corporate entity owns and operates all the
13 nuclear power plants that are licensed by the NRC?
14 A Exelon Generation Company, LLC or GENCO.
15 Q And prior to the merger who owned and operated all
16 the nuclear power plants?
17 A Two entities. Commonwealth Edison for the plants
18 that were principally located in northern Illinois.
19 Philadelphia Electric or PECO for the plants that were in the
20 Philadelphia region and then there was a joint venture among
21 Philadelphia Electric PECO and British Energy by the name of
22 AmerGen which owns three nuclear plants. One here in Illinois
23 and two in the east.
24 Q Does Exelon BSC have any licenses from the NRC?
25 A No, no, it does not.
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1 Q Has Exelon BSC ever owned or operated any nuclear
2 power plants?
3 A No.
4 Q When did you first become the CFO of the Unicom?
5 A In September, October of 2, I'm sorry, of 1999.
6 Q And was that when you first became employed with
7 Unicom or any of its subsidiaries?
8 A No, I was hired by the company, Unicom, as its
9 treasurer, vice president and treasurer on September 2nd, 1997.
10 Q Can you tell me what generally your duties were when
11 you were CFO of Exelon Corporation?
12 A I was responsible for essentially all the financial
13 and accounting matters of the company. Would you like me to
14 describe what that includes?
15 Q Sure.
16 A It includes the treasurer function which encompasses
17 financing and also cash management. We have accounting which
18 deals with internal accounting as well as external reporting.
19 For example our SEC filings that we do quarterly and annually
20 and periodically.
21 We also are responsible for management reporting of
22 financial results internally. We have responsibilities for
23 tax, internal audit, risk management, risk management in the
24 sense it incorporates not only traditional liability insurance
25 but it is also heavily focused on financial risk management,
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1 for example, with trading and other activities that we do in,
2 in our subsidiaries around energy contracts.
3 And I think I have encompassed pretty much all of my
4 responsibilities within my CFO role.
5 Q During the time you were CFO approximately how many
6 employees did you have in your entire organization?
7 A When I was CFO at Unicom we had --
8 Q I'm sorry, CFO of Exelon?
9 A CFO of Exelon in my direct span of control I had on
10 the order of 68 or 70 people.
11 Q And indirectly?
12 A Indirectly we had a decentralized organization so
13 there were CFOs in each of the business units who reported
14 directly to their line of business head. For example, to the
15 head of the GENCO in that instance. And we had a dotted line
16 relationship into me. That universe is probably 620 to 630
17 people all counted for.
18 Q Can you describe for us the context in which you
19 first came to meet Mr. Shirani?
20 A I was asked to be the executive sponsor for an
21 employee network group which is affiliated with the Asian
22 American employees of what was Commonwealth Edison, Unicom and
23 then he came in the same organization under the broader Exelon
24 umbrella.
25 It goes by the acronym AACES. Asian American ComEd
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1 Society when we were Unicom and then Asian American Community
2 for Exelon success under the Exelon umbrella.
3 But in either event the acronym is A-A-C-E-S as in
4 Sam.
5 Q And how did that executive sponsorship lead you to
6 meet Mr. Shirani?
7 A Mr. Shirani was AACES' first president.
8 Q Do you recall approximately what time period it was
9 that you first met Mr. Shirani?
10 A I believe it was 1999.
11 Q Prior to the fall of 2000, that is prior to the
12 merger that created Exelon, can you tell me about how
13 frequently you communicated with Mr. Shirani?
14 A It would be on the order of once to twice per month.
15 Q And what generally was the context of those
16 communications?
17 A Generally AACES business.
18 Q In those conversations or communications how often
19 did Mr. Shirani discuss his personal career with you?
20 A It was not uncommon that our conversations would
21 include some discussion of Oscar's job in, in the company.
22 Q When was the first conversation you recall you had
23 with him about his personal career?
24 A We had a lengthy conversation in what would have been
25 the spring, it would be the latter part of the spring of 1999
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1 or 2000. And it was, it was about an hour, I'm sorry, a half
2 an hour to 45 minutes in duration.
3 Q Where was that?
4 A It was in the context, an event that we were holding
5 for AACES we called it Taste of Asia. It was held in the, one
6 of our downtown buildings, ATT building at 225 West Monroe I
7 believe that is the address, and we, because of our roles we
8 were both there in addition to the rest of the leadership of
9 AACES.
10 Q What did Mr. Shirani tell you in that conversation if
11 you recall about his career?
12 A He was particularly disappointed and perhaps
13 frustrated, expressed frustration that he was not receiving
14 what he felt to be adequate and appropriate recognition for his
15 experience and his academic and technical expertise in his
16 current role and job.
17 Q What complaints if any did he make during that
18 conversation about his specific job or his manager?
19 A Well, I know that he, he mentioned that he reported
20 to an individual who did not have any degrees beyond a high
21 school education. And expressed frustration that he had a fair
22 amount of, not only direct job related experience, but
23 technical training and degrees associated with that which
24 included a PE.
25 Q What did you advise him or suggest to him during this
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1 conversation?
2 A I suggested that he, he needed to be very clear about
3 his own goals as it related to his career and his job. And it
4 was important that he address his interests in wanting to be a
5 manager and be perhaps recognized for again his, his on the job
6 experience, his technical expertise in a way that was
7 commensurate with his interest in becoming a manager.
8 Q Again, prior to the merger, prior to the fall of 2000
9 time period do you recall approximately how many conversations
10 you had with him on these personal career issues?
11 A I, I believe that, I, I could not begin to estimate
12 the number of conversations. I, I would say that we probably
13 had more conversations that were career orientated in the
14 summer that proceeded and in the time that, summertime, that
15 preceded the merger. Again the merger was consummated on
16 October 20th of 2000.
17 Q What advise or recommendations did you give to
18 Mr. Shirani regarding his role as president of AACES?
19 A The, the commitment that Oscar made to his presidency
20 in AACES appeared to be very time consuming. He had a very
21 high interest level in making sure that he was responsive to
22 people, in charge of responsibilities that were, you know,
23 commensurate with the president's role.
24 And I suggested that perhaps a little too much time
25 was being spent in that, in that responsibility after all it
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1 was a volunteer position. It was not a job related, directly
2 job related position and I felt that he ought to give some
3 consideration to the amount of time he was spending and perhaps
4 not seek an additional term as president.
5 We did not have term limits, however, to how long one
6 could remain an officer but in that organization but my
7 recommendation was for him to consider not running for an
8 additional term.
9 Q You didn't have any information that his work in
10 nuclear was suffering, did you?
11 A No. When he was in a suburban location and when we
12 met and frequently met in my office downtown, so by definition
13 he wasn't in his work location when we had those meetings.
14 Q What advise or recommendation did you give to
15 Mr. Shirani regarding using his role as the president of AACES
16 for his career?
17 A I felt that on occasion Mr. Shirani used the
18 presidency of AACES as a platform for his own career interests
19 and because it was an opportunity by virtue of being president
20 of an employee network group to have probably more readily
21 accessible opportunities to interact with senior management.
22 And I was, I, I did note that when he, when he sent
23 e-mails he used president of AACES as a title that followed
24 his, his name and his PE notation. And I do not think that
25 that was appropriate. I wasn't aware that any other employee
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1 network group president or officer was using that in their
2 internal communications and possibly external communications.
3 Q Why did it concern you that he was using this role to
4 help advance himself in the company? Why was that an issue for
5 you?
6 A From my own personal perspective?
7 Q Yes.
8 A I, I think it's untoward. I think when you take on a
9 role within an organization to represent a group then that's
10 what that responsibility runs to. Not to one owns self.
11 Q And that's your opinion I take it?
12 A That's my opinion.
13 Q What did you advise Mr. Shirani in that respect?
14 A I advised him perhaps that not, not everyone in the
15 organization felt that what some of his agenda items were were
16 necessarily reflective of the concerns and issues of the
17 membership.
18 Q And who in the organization are you referring to who
19 brought this to your attention?
20 A The other officers on AACES at the time.
21 Q Throughout the entire time period before Mr. Shirani
22 came to work with you in January of 2001, what was it that
23 nuclear was doing or not doing that he complained about to you?
24 A In the context of our conversations about nuclear
25 were lack of promotion, lack of recognition, and lack of an
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1 opportunity to take on a managerial role which he felt was
2 important, you know, again given his, his career and the
3 progression that he wanted to see his career make.
4 In addition, you know, he expressed a strong interest
5 in wanting to do the best for Exelon. And I think there was,
6 my perception at least, was a correlation between taking on
7 expanded managerial responsibilities and giving the opportunity
8 to give his best to the company.
9 Q Did you find that to be a good thing? His expression
10 of his interests?
11 A Yes. It's not a bad thing at all.
12 Q At any time prior to Mr. Shirani's coming to work at
13 your organization in January of 2001, did he ever tell you that
14 he believed Exelon nuclear was trying to force him out or get
15 rid of him?
16 A No, I don't think I ever recall that there was an
17 expression of wanting to be forced out. There was an
18 expression of disappointment in having been given an individual
19 contributor position around the time of the merger.
20 We had job selection that went on and it varied from
21 business unit to business unit. And if I recall correctly
22 GENCO and nuclear did theirs mostly in the late summertime
23 frame. Finance did, we did most of our selection but never, we
24 did not finish at the time of the merger so we finished, we, we
25 did most of the selection however in the September to the early
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1 part of October time frame.
2 And he was given an individual contributor role which
3 means that he did not have other people reporting into him.
4 And expressed disappointment.
5 Q Can you please turn to Respondent's Exhibit 8.
6 A Is that this book?
7 Q In the binder in front of you, yes.
8 A And Exhibit?
9 Q 8.
10 A Yes, I have that.
11 Q And I want to ask you if you recall --
12 A Do you need to see this? Sorry.
13 Q I want to ask you if you recall receiving the e-mail
14 at the bottom of the first page of Exhibit 8.
15 A Yes, I did.
16 Q Was this the first time Mr. Shirani asked you for
17 help in getting a job?
18 A Yes, it was as I recall.
19 Q After your received this e-mail do you recall a
20 conversation with Mr. Shirani regarding his coming to work in
21 your organization?
22 A We had a conversation in the fall, September, October
23 time frame where in --
24 Q Of what year?
25 A Oh, I'm sorry. In 2000.
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1 Q Okay.
2 A So this is in the merger time frame. Merger became
3 October 20th of 2000. He asked me for a job in the finance
4 organization.
5 Q Where did that occur?
6 A In my office, at my conference table specifically.
7 Q Did he ask you anything else that you recall in that
8 conversation?
9 A He asked me for an opportunity to be able to get more
10 to the organization. And he felt working in finance might give
11 him that opportunity.
12 Q Other than Mr. Shirani in that conversation did
13 anyone else ever direct you, ask you or suggest to you that you
14 get Mr. Shirani a job in your organization?
15 A No, no one did.
16 Q Did Mr. Shirani give you any reason for his interest?
17 A He, he felt that there were fewer opportunities for
18 him to realize his goals and, and ambitions and again wanting
19 to give more, do more for Exelon in, outside of the area where
20 he was currently.
21 Q What did you tell him in response to his request?
22 A Well, I was still in the throws of finalizing our
23 selection for, for jobs in finance. As I mentioned ours were
24 done after some of the other business groups. And I did, well,
25 I wasn't fully done with that process. Many of the jobs had
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1 already been, you know, committed to inside but I did have some
2 jobs I was yet recruiting for. But I wasn't sure that I saw a
3 direct correlation between Mr. Shirani's background and the
4 opportunities that I, that I had directly in finance.
5 Q Just so I'm clear and the record is clear. Is this
6 your thinking or are you telling us what you actually told
7 Mr. Shirani?
8 A It is my thinking of, my, my recollection of my
9 conversation with Mr. Shirani.
10 Q Please continue.
11 A And but I did say to him that I, I would, I would
12 certainly one, do the best I can to consider his request and it
13 was a request. And I, and we talked briefly about the, the one
14 area where I had done no hiring yet because the area was being
15 completed reconstituted and that would be internal audit and
16 given Mr. Shirani's background, in particular his auditing
17 capabilities and his very good understanding from, you know,
18 having talked to him over time about process and controls, they
19 were not, they were not dissimilar disciplines in, in the
20 internal audit function that we had in my area.
21 And I felt that that would potentially be a match.
22 However, because I was rebuilding the organization I did not
23 even have managers in place in Chicago at the time.
24 Q Just so we're clear. What precisely did you tell
25 Mr. Shirani on that issue?
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1 A One I was in the process of hiring a general auditor
2 who would be responsible for the area and responsible for
3 designing a plan, a strategy if you will, to rebuild the
4 internal audit function. I did have a small group in
5 Philadelphia of internal audit prior, if I can step back.
6 Prior to the merger. Unicom had outsourced its
7 internal audit function 100 percent to Arthur Andersen. PECO
8 Philadelphia Electric prior to the merger had had what I would
9 call a fairly traditional utility internal audit function.
10 They probably had at one point in time as many as 15 people. I
11 think probably Andersen had on the order of 15 to 17 FTE when
12 you counted all of their ongoing people they had working on
13 audits committed to the Unicom. So kind of similar in size but
14 ours was outsourced here in the west.
15 Q In stepping back to what precisely you said to
16 Mr. Shirani on that issue.
17 A Well, I could not, I couldn't reproduce for you what
18 I said precisely. I did indicate that I am still in the
19 process of recruiting for a general auditor and a general
20 audit, a general auditor. And that whole area was going to be
21 rebuilt.
22 So I don't have an infrastructure as yet in Chicago.
23 And even if we were able to fashion a position it would
24 probably be one where it would report into Arthur Andersen the,
25 the team that was running our internal audits here in Chicago.
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1 But then over time I would certainly have that infrastructure
2 in place but there was, going to be a period of time when there
3 would some ambiguity and lack of structure in that
4 organization.
5 Q And what was your purpose in explaining that, those
6 issues to Mr. Shirani?
7 A Well, as I said he asked me for a job in finance. I
8 did not have a universe of jobs that were open number one.
9 Number two, the jobs that were open none really well correlated
10 with his background with the exception of internal audit and
11 frankly there wasn't an organization as we know it, no
12 infrastructure existed in Chicago at that point in time.
13 Q How did Mr. Shirani response to these issues that you
14 raised?
15 A He, he asked me to give consideration to what I could
16 explore and I promised him that I would. And I did.
17 Q What in fact did you do?
18 A Well, I, I took a look at our, well, in, in the work
19 that we did in organizational structure with the merger we had
20 essentially scoped out all be it not done anything beyond
21 scoping it out, how many people in internal audit we might have
22 and generally that would correspond with, from a, a grey
23 perspective, the levels would correspond to what we had in
24 other areas in finance such as accounting.
25 So I knew roughly that an auditor position would be,
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1 would be a grade or two, some of my accounting positions. I
2 also had a function in Philadelphia so I tried to correlate the
3 thinking, my, my thinking to make sure I wasn't, you know,
4 totally off base and keyed off of the grade system or the grade
5 placement that we had in Philadelphia as well.
6 And so I worked with our human resources department
7 to see if we could develop an opportunity in Chicago that would
8 be an auditor position in the internal audit group with a lot
9 of the specifics yet to be defined.
10 Q One question back to the initial conversation when
11 this came up. Did you in that conversation or any other
12 conversation offer Mr. Shirani or suggest to him a position as
13 a tax manager?
14 A No.
15 Q Given --
16 A Taxes is a highly specialized area.
17 Q And so therefore you would not have?
18 A I think of all the, all the jobs in the finance
19 organization tax would be the job that I, I could not do. It
20 just has a level of expertise that I, I would not even remotely
21 be able to, to handle myself.
22 Q You understood at the time that Mr. Shirani did not
23 have significant financial internal auditing experience, that's
24 right?
25 A Yes.
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1 Q Why despite that did you undertake these efforts to
2 create or look into a position for him in your organization?
3 A I guess a number of reasons. I'm an officer in the
4 company. I can do that. Secondly over the period of time that
5 I, I was working with, with Oscar in AACES and he met with me
6 and talked to me I got to know Oscar fairly well and understood
7 his, his interest in wanting to over time improve his career,
8 become a manager and, and he was very passionate in now wanting
9 to support Exelon. And frankly he asked me for a job.
10 So I felt that the least I could do was explore the
11 one area that probably dovetailed most closely with his
12 background. And there, there was some finance background in
13 Mr. Shirani's experience. And I think it's noted here if this
14 is the right Exhibit, on page two of this Exhibit it sights
15 some financial analyst work that was done in the '93 to '97
16 time frame.
17 Q Okay. You offered him a position subsequently?
18 A I offered him a position in December actually.
19 Q What was the salary grade for the position you
20 offered him?
21 A If I remember correctly it was an E-4 position.
22 Q How did you decide that particular salary grade for
23 this position?
24 A Well, as I mentioned we had the group in Philadelphia
25 and we had job rankings in the other areas in finance and that
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1 was the appropriate level for an auditor.
2 Q You took a vacation in that December, is that
3 correct?
4 A Yes.
5 Q When relative to your vacation did you offer a
6 position to Mr. Shirani?
7 A Shortly before I left and my departure date was
8 December the 20th of 2000.
9 Q And where did that discussion occur if you recall?
10 A When I originally offered Oscar the position I
11 believe we were in my office.
12 Q What did you tell him?
13 A I indicated to him, you know, much of what we just,
14 what I just reiterated to you in your question that, you know,
15 we don't have this group wholly formed at this point but we
16 would have one.
17 My, my expectation that my recruiting efforts would,
18 would wrap up in the near future and that was my goal to have
19 the, a recruitment in place by the, finalized by the end of the
20 first quarter of 2001. And that we would be developing the
21 organization over time. But I could create a rather unique
22 position here in Chicago and he would need to report into
23 Arthur Anderson.
24 The position could not report into me. I already had
25 a very broad span of control and could not take on, you know, a
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1 direct report at that level but report into Arthur Andersen.
2 In the intervening period of time of course I talked to our
3 engagement management at Arthur Andersen and he did not have
4 any particular concerns or reservations about trying to work
5 this position out for a period of time. And so I, I explained
6 that offer, the job at the E-4 level to Oscar.
7 Q Can you turn please to Respondent's Exhibit 9.
8 A Yes.
9 Q And specifically the second page of that Exhibit
10 which for the record is already admitted as Complaint's Exhibit
11 20.
12 Can you tell me what you did with this document at
13 that meeting when you made the offer of the position?
14 A I, I wouldn't have gotten this document from our
15 human resources group. Consistent with my conversations with
16 HR. And I gave this to, to Oscar to highlight the, the title
17 and the grade level and the salary level. It represented as is
18 indicated here just under 6.5 percent salary increase.
19 Q How did Mr. Shirani react to these numbers when you
20 gave them to him?
21 A I, I think he, as I recall, he was appreciative of my
22 efforts. However, he was disappointed in the salary level.
23 And he was taken aback by the grade level. He did not, he
24 thought that he was at a higher grade than was indicated on
25 this Exhibit on the left at an E-3. He thought he was, he was
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1 under the impression that he was in the higher grade level and,
2 number one.
3 Number two he felt that this was not what he expected
4 in terms of salary increase and he highlighted hardship that
5 would be entailed with a commute, different from the commute
6 that he currently had which was to a suburban location. This
7 job is principally located downtown although there is some,
8 some travel in, in the Chicagoland area involved to depending
9 upon the audit location.
10 And so he, he was not wholly pleased with the offer
11 that I gave him.
12 Q That document indicates an effective date of December
13 18th, 2000. Do you know?
14 A Generally when we, when we provide offers what we try
15 to do is show a date that's within a week or so in advance
16 because obviously you can't put it effective the date of the
17 conversation. The employee needs to be given time to reflect
18 on it and accept it or not as the case may be.
19 So it's not uncommon to see then a date would be a
20 week or so in advance in terms of an effective date. And
21 sometimes it's keyed off of a paycheck period.
22 Q Following up on his concerns relating to the pay
23 level. What specifically did you do in that respect?
24 A Well, I had actually done some work trying to figure
25 out what grade Oscar was. And in fact he was a grade level 4.
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1 I made sure of that. And it, I'm sorry, I beg your pardon. It
2 was an E-3 going to a 4, my apologies, I was on the wrong line.
3 And, and I felt that it was not, not an inappropriate
4 amount of salary increase for the promotion. It's very much in
5 keeping with our promotion salary raise. And by the way this
6 promotional increase would not preclude a merit increase in the
7 March, April time frame of the coming year.
8 It's when we do our annual merit increases, I was
9 going to say on an annual basis. So I was, I was personally
10 taken aback that there was a misunderstanding about the grade
11 level and there seemed to be lack of acceptance of the, of the
12 merit increase.
13 But I did understand the hardship issue of needing a
14 different commutation pattern and there was also an issue with
15 picking up children after school. And, and so but I worked
16 with human resources to see what we could do and in fact there
17 is some precedent for folks with having gotten new jobs, new
18 job assignments with the merger to have had different commutes
19 and we made some modifications from a salary basis to
20 accommodate those different commutation patterns.
21 So page one of that Exhibit shows that we increased
22 the salary to just a little bit over eight percent increase in
23 order to make that accommodation.
24 Q For the record page one you're referring to the first
25 page of Respondent's Exhibit 9?
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1 A Yes, I am.
2 Q And for the record that's already in as Complainant's
3 Exhibit 21.
4 Did you communicate the salary increase for that
5 position to Mr. Shirani?
6 A Yes, I did. And let me anticipate your question
7 which is probably how and I don't recall if I faxed it to him.
8 Remember Mr. Shirani at that point in time was working in the
9 suburbs. I, my office is downtown, or if human resources faxed
10 it to him or got it to him in another mode.
11 Q And did you receive any response from Mr. Shirani?
12 A I asked Mr. Shirani to consider it and let me know
13 however I was about to leave on my, on my vacation so I
14 suggested that he contact me by voice mail and let me know his
15 decision and I would call him as soon as I got his message.
16 Q And how did you come to learn his decision?
17 A If I'm not mistaken he left me a voice mail or he may
18 have left a voice mail on my assistant's line. I don't recall
19 exactly but I got a voice mail to call Oscar, he'd like to talk
20 to me and I did call him from my vacation and he told me the
21 good news and I was delighted that he accepted the position.
22 Q Prior to his accepting the position did you become
23 aware that he had applied for the position of diversity manager
24 in Exelon Nuclear?
25 A He told me that he applied for a position as
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1 diversity manager and it may have been at the time I was
2 talking to him about pursuing the internal audit position so
3 during my, if you will, my background work on trying to explore
4 the feasibility of that, that role and he indicated that he had
5 been told that he was the main candidate for the diversity
6 position.
7 And I, I certainly didn't want to put that series of
8 discussions off course if I, particularly if I was going to try
9 and go down a path of identifying a job in internal audit. So
10 I contacted human resources to find out whether or not this in
11 fact was fairly far down the road and if that were the case I,
12 I didn't feel it appropriate to, if you will, have those
13 discussions go a different direction if, if in fact they were
14 pretty far down the rod.
15 Q And what did you learn from human resources?
16 A That yes Mr. Shirani had I believe applied for the
17 position. We bid on positions in the company and he bid on a
18 position but was not the lead candidate. In fact they were not
19 at a point of narrowing down the field of candidates.
20 If I recall they were still in the interviewing
21 process and had not decided whether or not they would close off
22 interviewing to internal candidates alone or go outside and
23 interview externally.
24 Q Mr. Shirani testified on direct that at some point
25 during these conversations you made a reference to his being or
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1 possibly being in "the line of fire" in nuclear. Did you then
2 or did you now have any reason to believe that Mr. Shirani was
3 in "the line of fire" in Exelon Nuclear or ComEd Nuclear at any
4 time?
5 A Any perception that I have of Oscar's situation in
6 nuclear was wholly a function of my discussions with him. His
7 discussions with me. If he believed that he was in a tenuous
8 situation or in the line of fire that was the perception that I
9 got from those conversations. So it would have been in the
10 context on any comments he was making and they would have been
11 perceptual.
12 Q Do you recall ever using the words in the line of
13 fire with respect to Mr. Shirani's position in nuclear?
14 A I, I, it's possible that I may have said well if you
15 believe that you are in the line of fire.
16 Q Then what?
17 A Then you know it's important for you to step back and
18 consider your, your own personal goals and what, and what your,
19 what you're doing in getting out the position you're in. And
20 that theme was very consistent with all of the advise I ever
21 gave Oscar.
22 Q Mr. Shirani --
23 A Understand your goals and be very clear with whether
24 or not you're being met on the position that you're in.
25 Q Did Mr., excuse me. Mr. Shirani testified that you
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1 made a statement relating to Mr. Kingsley's support for
2 diversity. Did you ever state or suggest to Mr. Shirani that
3 Oliver Kingsley doesn't support diversity?
4 A Absolutely not.
5 Q Did you ever state or suggest to Mr. Kingsley that,
6 let's see. Did you ever state or suggest to Mr. Shirani that
7 Mr. Kingsley doesn't like the stuff Shirani does on diversity
8 or anything to that effect?
9 A No, no.
10 Q Did you then or do you now have any reason to believe
11 that anyone at Nuclear was trying to get rid of Mr. Shirani?
12 A No. I never talked to anyone in Nuclear about
13 Mr. Shirani's job.
14 Q Did you inform John Rowe that Mr. Shirani was coming
15 to work in your organization?
16 A Yes, I did.
17 Q Why? Why did you believe he would be interested?
18 A John and Oscar knew each other from various
19 interactions. They shared e-mails with one another. John is
20 my boss. I am in frequent contact with John. And we, I share
21 decisions that I make in human resources. And shared the good
22 news with John while I was on vacation.
23 Q Let me now turn to the time period after Mr. Shirani
24 started working in your organization.
25 A I'm sorry which organization?
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1 Q In the internal audit organization. Before Ellen
2 Caya came to the organization in April of 2001, can you tell me
3 what type of work Mr. Shirani performed?
4 A Mr. Shirani was assigned to a number of internal
5 audit projects. I can't recite for you which ones they were.
6 He worked together with the audit team from Arthur Andersen.
7 Q And who decided what role Mr. Shirani had in any of
8 those audits?
9 A That would be up through March that would have been a
10 joint decision among the engagement manager and Arthur Andersen
11 and a gentleman who was departing the company in March, a
12 gentleman by the name Mr. George Hurtz, H-u-r-z, there might be
13 a T in there, H-u-r-t-z, I think.
14 And he was responsible for the coordination of
15 internal audit assignments to Arthur Andersen.
16 Q Mr. Shirani testified that you promised training.
17 Can you tell me what training you told him he would get and
18 what training in fact you made available to him?
19 A I spoke specifically with Andersen about over time
20 would we be able to develop training opportunities that would
21 bring, if you will, more classroom days experience on top of
22 the on the job training experience to, to Oscar so that he can
23 expand his knowledge of financial internal accounting.
24 And Andersen, Andersen explored that and they were
25 somewhat reticent to make commitments about training. They had
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1 a training facility that is mostly their, for their own
2 internal employees. That's up in St. Charles. They do rent
3 the facility out to third parties but infrequently do they
4 bring third parties in to their own training.
5 But they, they indicated to me that they'd like to be
6 able to work something out and it was something that with all
7 of the turmoil at Andersen, frankly we weren't able to continue
8 to explore further. They, things at Andersen got a little
9 rough as the year progressed.
10 Q Did Mr. Shirani then get any training during this
11 time period?
12 A On the job training working with the Andersen
13 consultants, Andersen audit team.
14 Q Again, prior to Ms. Caya's arrival, do you recall
15 whether any concerns were reported to you about how Mr. Shirani
16 was working with audited clients?
17 A I did hear back from Andersen and they were concerned
18 about Oscar's understanding his scope of responsibility in the
19 context of performing an audit and crossing, if you will, that
20 boundary, that line and essentially providing advice,
21 recommendations on how to do things that weren't being
22 solicited of him nor asked of him.
23 And that got a little difficult because, you know,
24 Andersen felt that, well, Oscar worked for the company but yet
25 company people were uncomfortable with that, with that
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