                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
36   OCAW, Local 7-629, et al.                 No. 98-4336                     Pursuant to Sixth Circuit Rule 206
     v. RMI Titanium Co.                                               ELECTRONIC CITATION: 2000 FED App. 0016P (6th Cir.)
                                                                                   File Name: 00a0016p.06

  For the foregoing reasons, I would hold that plaintiffs-
appellants have raised legitimate fact questions on whether    UNITED STATES COURT OF APPEALS
additional employees should be counted. As a result, I would
reverse the district court’s grant of summary judgment to                        FOR THE SIXTH CIRCUIT
defendant and remand the case for trial.                                           _________________


                                                                                            ;
                                                                                             
                                                                OIL, CHEMICAL AND ATOMIC
                                                                                             
                                                                WORKERS INTERNATIONAL
                                                                                             
                                                                UNION, LOCAL 7-629,
                                                                                             
                                                                                                            No. 98-4336
                                                                AFL-CIO, et al.,
                                                                                             
                                                                        Plaintiffs-Appellants,>
                                                                                             
                                                                                             
                                                                                             
                                                                         v.

                                                                                             
                                                                        Defendant-Appellee. 
                                                                RMI TITANIUM COMPANY,
                                                                                             
                                                                                            1

                                                                      Appeal from the United States District Court
                                                                     for the Northern District of Ohio at Cleveland.
                                                                   No. 92-01679—Paul R. Matia, Chief District Judge.
                                                                                 Argued: November 3, 1999
                                                                             Decided and Filed: January 12, 2000
                                                                Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
                                                                         Judge; HILLMAN,* District Judge.




                                                                   *
                                                                     The Honorable Douglas W. Hillman, United States District Judge
                                                               for the Western District of Michigan, sitting by designation.


                                                                                                1
2    OCAW, Local 7-629, et al.                  No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.        35
     v. RMI Titanium Co.                                                                          v. RMI Titanium Co.

                    _________________                            acknowledge the existence of facts in the record (elicited from
                                                                 defendant’s own agents) which directly contradict its present
                        COUNSEL                                  claim that the employees were part-time. First, in its answers
                                                                 to appellants’ interrogatories, appellee represented that none
ARGUED: David A. Santacroce, SUGAR LAW CENTER                    of the employees laid off between April 23, 1991 and
FOR ECONOMIC AND SOCIAL JUSTICE, Detroit,                        November 17, 1991 worked less than 20 hours per week in
Michigan, for Appellants. Barton A. Bixenstine, ULMER &          the last 90 days of work or the actual time worked, whichever
BERNE, Cleveland, Ohio, for Appellee. ON BRIEF: David            is shorter. J.A. pp. 178-79. In addition, in the affidavit of
A. Santacroce, Julie H. Hurwitz, SUGAR LAW CENTER                Jerome Bennett, attached to appellee’s motion for summary
FOR ECONOMIC AND SOCIAL JUSTICE, Detroit,                        judgment and contained in the appendix, Bennett averred that
Michigan, Theodore E. Meckler, Cleveland, Ohio, for              13 of the 21 employees whose voluntary recall ended between
Appellants. Barton A. Bixenstine, ULMER & BERNE,                 July 22, 1991 and August 21, 1991 were full time employees.
Cleveland, Ohio, for Appellee.                                   Bennett Aff. ¶ 9, J.A. p. 201. Twenty-one of the 27
                                                                 employees at issue here were returned to layoff on August 5,
  DAUGHTREY, J., delivered the opinion of the court, in          1992, and only one other employee’s voluntary recall ended
which MARTIN, C. J., joined. HILLMAN, D. J. (pp. 12-36),         during the period between July 22, 1991 and August 21, 1991.
delivered a separate dissenting opinion.                         J.A. pp. 151-52 (V. Johnson (whose regular layoff date is July
                                                                 22, 1991) is shown as returning to layoff after voluntary recall
                    _________________                            on August 19, 1991).
                        OPINION                                     These record statements made by defendant-appellee create
                    _________________                            a genuine issue of material fact concerning the full-time status
  MARTHA CRAIG DAUGHTREY, Circuit Judge. The                     of at least 13 or as many as all of the 27 employees who were
plaintiffs, Oil, Chemical and Atomic Workers’ (OCAW)             returned to layoff following voluntary recall between August
Union Local 7-629, Kenneth Allen, and a class of OCAW            and September 1991. Accordingly, appellee is not entitled to
members separated from employment during July and August         summary judgment on the basis of this alternative argument.
1991, advanced a claim for damages under the Worker                                            III.
Adjustment Retraining and Notification Act of 1988 (WARN)
against the defendant, RMI Titanium Company. The                   In upholding the district court’s grant of summary
plaintiffs alleged that by failing to give its employees         judgment, the majority gives conclusive weight to the
adequate notice of the layoffs, the company violated             evidence adduced by the employer while disregarding or
provisions of the Act. In response to cross-motions for          discounting both circumstantial and direct evidence presented
summary judgment, the district court ruled in the company’s      by plaintiffs-appellants. In our judicial system, it is the
favor, finding that the plaintiffs had failed to establish the   appointed finders of fact who alone are permitted to sort
requisite number of layoffs to trigger the notice provisions     through such conflicting evidence, to determine credibility,
under WARN. We affirm.                                           and to make reasonable inferences. Because the majority’s
                                                                 decision oversteps its role, and out of respect for the structure
                                                                 of our judicial system, I respectfully dissent.
34   OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.       3
     v. RMI Titanium Co.                                                                            v. RMI Titanium Co.

Activity in the Voluntary Layoff Program, J.A. pp. 150-52.           I. PROCEDURAL AND FACTUAL BACKGROUND
In light of this pattern, defendant-appellee’s failure to
anticipate that at least two employees would request voluntary       The facts are largely undisputed.           RMI Titanium
layoff during the relevant 90 days was patently unreasonable.      experienced a downturn in its business beginning in 1990,
                                                                   which precipitated a series of layoffs as part of a continuing
  Appellee next claims without discussion that layoffs caused      reduction in its workforce, beginning with an initial layoff of
by the voluntary layoff program resulted from a cause that         60 unionized employees in 1990. In January 1991, the
was separate and distinct from RMI’s overall economic              company warned union representatives of the need for further
difficulties. I reject that claim. Although the 27 voluntarily     reductions and laid off another 29 employees in February
recalled employees were returned to layoff status as the result    1991. Despite these efforts, RMI posted losses of $2.5
of the return to work of more senior employees, it is not this     million in the first six months of 1991.
change that triggered their employment loss. Instead, as a
direct result of RMI’s economic difficulties, these employees,        During the spring of 1991, approximately 197 unionized,
once returned to layoff status, lost all opportunity for further   non-salaried employees and 72 non-unionized, salaried
recalls. Specifically, as the result of the dramatic number of     employees were working full-time at RMI’s Metals Plant. Of
new layoffs of more senior employees, these employees              the unionized employees,14 senior union members
experienced an employment loss because they lost any               participated in a “voluntary layoff” program negotiated with
reasonable expectation of recall and their previously              RMI in 1986 and made available to employees during periods
temporary layoffs were rendered permanent.                         of workforce reduction. Employees taking a voluntary layoff
                                                                   received one month’s unpaid leave, subject to renewal, and
   Accordingly, while their return to layoff status in and of      were replaced by union members previously (involuntarily)
itself was arguably tied to the separate cause of the more         laid off from the plant who possessed similar job skills. At
senior employees having voluntarily returned to work under         the end of the senior employee’s voluntary layoff, the
the voluntary layoff program, their employment loss, the           replacement was returned to “layoff” status, unless he or she
relevant consideration at issue here, occurred not because they    was asked to replace another senior employee.
were placed on layoff, but because that layoff was no longer
temporary and instead continued for a period of greater than         Of the 72 non-unionized employees working at the Metals
six months. 29 U.S.C. § 2101(6)(B). The employment loss,           Plant during the first half of 1991, approximately 13
therefore, was caused not by the voluntary layoff program, but     employees were assigned to a research and development
by the same economic causes precipitating the rest of the          project referred to internally as the Electrolytic Titanium
layoffs occurring during the 90-day period, that is, the           Project (ETP). The project’s objective was the development
accelerating economic downturn of the company.                     of a variation on titanium production processes in use at the
                                                                   Metals Plant. RMI shared funding responsibilities for this
  Appellee’s final argument is that all of the 27 employees        project with an Italian company, Ginatta Torino Titanium.
were part-time employees and therefore were not countable in
determining whether a mass layoff occurred. See 29 U.S.C.            The company continued its layoffs during the summer of
§ 2102(a)(3)(B) (excluding part-time employees). In support        1991, laying off 85 additional unionized workers in July and
of its assertions, appellee makes absolutely no citations to the   August, and five non-unionized employees, including three
record. Moreover and more significantly, appellee fails to         members of the ETP team. Also during this time,
4      OCAW, Local 7-629, et al.                   No. 98-4336   No. 98-4336                  OCAW, Local 7-629, et al.       33
       v. RMI Titanium Co.                                                                        v. RMI Titanium Co.

approximately 35 senior unionized employees took one- or         “unforeseeable business circumstances.” Title 29 United
two-month leaves under the voluntary layoff program; they        States Code, § 2102(B)(2)(A) provides that
were replaced by previously separated junior employees
recalled from and then returned to layoff status. Apparently,      An employer may order a plant closing or mass layoff
none of the employees laid off during this period received         before the conclusion of the 60-day period if the closing
advance notice of their change in job status.                      or mass layoff is caused by business circumstances that
                                                                   were not reasonably foreseeable as of the time that notice
  Despite these measures, the company’s financial                  would have been required.
misfortunes continued, and it commenced shutting down
some of its production facilities in January 1992. The Metals    Besides making the blanket assertion that it is protected by the
Plant closed on February 15, 1992. Later that year, the          exception, defendant-appellee makes no attempt to analyze
plaintiffs brought this WARN action against RMI, claiming        the applicability of the statutory provision.
violation of the notice provisions of the Act.
                                                                    By its plain terms, the quoted exception is designed to
                       II. DISCUSSION                            provide a mechanism for an employer to engage in a mass
                                                                 layoff with less than 60 days of notice based on circumstances
                        WARN Liability                           in which an employer had been prevented from projecting the
                                                                 need for or the size of layoffs because business circumstances
  The Worker Adjustment Retraining and Notification Act          were not reasonably foreseeable. In other words, the
provides, in pertinent part, that:                               exception provides an escape valve to the length of notice
                                                                 period required in those circumstances in which the employer
    An employer shall not order a plant closing or mass          was unable to project the need for mass layoffs 60 days in
    layoff until the end of a 60-day period after the employer   advance in order to provide the required notice. Here,
    serves written notice of such an order . . . to each         defendant-appellee instead attempts to use the provision not
    representative of the affected employees as of the time of   to excuse the unknown economic necessity for layoffs, but to
    the notice or, if there is no such representative at that    excuse its need to project with some degree of precision how
    time, to each affected employee.                             many employees would use the voluntary layoff program.
29 U.S.C. § 2102(a) (1994). The purpose of this provision is       Even if the provision could be interpreted to apply to RMI’s
“to ensure that ‘workers receive advance notice of plant         inability to project how many people might be on voluntary
closures and mass layoffs that affect their jobs.’” Kildea v.    recall, defendant-appellee has failed to create a genuine issue
Electro-Wire Products, Inc., 144 F.3d 400, 405 (6th Cir.         of fact as to whether it was reasonably foreseeable that the
1998) (quoting Marques v. Telles Ranch, Inc., 131 F.3d 1331,     number of voluntary layoffs in the 90-day period would equal
1333 (9th Cir. 1997)). Under WARN, an “affected                  or exceed two, the total number of additional employees
employee” is an employee “who may reasonably be expected         required to trigger a mass layoff under WARN. The record
to experience an employment loss as a consequence of a           reflects that between September 1990 and September 1991 an
proposed plant closing or mass layoff by their employer.” 29     average of nine employees per month participated in the
U.S.C. § 2101(a)(5). An “employer” is “any business              voluntary layoff program, and in no month did fewer than
enterprise that employs . . . 100 or more employees, excluding   three employees participate in the program. See Summary of
part-time employees.” 29 U.S.C. § 2101(a)(1)(A). An
32   OCAW, Local 7-629, et al.                   No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.        5
     v. RMI Titanium Co.                                                                           v. RMI Titanium Co.

on layoff, with their original layoff date, while the more        “employment loss” is “an employment termination, other than
senior active employees are treated as remaining on active        a discharge for cause, voluntary departure, or retirement . . .
status. As a consequence, defendant-appellee suggests, the        a layoff exceeding 6 months, or . . . a reduction in hours of
layoffs of these 27 employees as regular employees must be        work of more than 50 percent during each month of any 6-
considered under the contract to have occurred prior to the       month period.” 29 U.S.C. § 2101(a)(6).
WARN period at issue here, when they were first laid off, and
should not be countable as relevant employment losses.              Certain statutory thresholds apply in order for a layoff or
                                                                  sequence of layoffs to constitute a “mass layoff” and subject
   As I previously noted, however, contract rights under the      an employer to liability under WARN:
collective bargaining agreement are not affected by and have
no effect on the rights of employees under WARN. 29 U.S.C.          [T]he term “mass layoff” means a reduction in force
§ 2105. Contractual terms, therefore, may not be used to            which --
either expand or contract the statutory language.
                                                                      (A) is not the result of a plant closing; and
  In addition, under the regulations, even if these workers are
considered temporary replacement employees as opposed to              (B) results in an employment loss at the single site of
returning laid-off regular employees, they must be counted            employment during any 30-day period for–
under WARN as employees for purposes of determining
whether a mass layoff has occurred. Pursuant to 20 C.F.R.                (i)(I) at least 33 percent of the employees
§ 639.3(c)(2),                                                           (excluding any part-time employees); and

  Workers, other than part time workers, who are exempt                  (II) at least 50 employees (excluding any part-time
  from notice under section 4 of WARN [29 U.S.C.                         employees); or
  § 2103(1)] are nonetheless counted as employees for
  purposes of determining coverage as a . . . mass layoff.               (ii) at least 500 employees (excluding any part-time
  For example, if an employer closes a temporary project                 employees).
  on which 10 permanent and 40 temporary workers are              29 U.S.C. § 2101(a)(2). In order to trigger the notice
  employed, a covered plant closing has occurred although         requirement under this section, if the employer lays off fewer
  only 10 workers are entitled to notice.                         than 500 employees in an action unrelated to a plant closing,
(Emphasis added.) For both reasons, I am persuaded that           the number of employees laid off must exceed 50 and must
contractual classification of these employees neither has nor     also exceed 33 percent of the total number of employees.
could have any bearing on whether they should be counted          Department of Labor regulations governing WARN
under WARN for purposes of determining whether a mass             enforcement require that these figures be calculated at a
layoff has occurred.                                              “snapshot”date, the date notice is first required to be given.
                                                                  See 20 C.F.R. § 639.5(a)(2) (1999). Even where the number
  Defendant-appellee next contends that even if the 27            of layoffs does not exceed both 50 and 33 percent of the total
employees should otherwise be counted in determining the          number of employees, however, layoffs occurring in separate
threshold number under WARN, they fall within a statutory         reduction actions may be aggregated into a “mass layoff” if
exception to being counted because they were caused by            each set of layoffs involves fewer workers than required by
6    OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                      OCAW, Local 7-629, et al.           31
     v. RMI Titanium Co.                                                                                v. RMI Titanium Co.

the two statutory thresholds and all layoffs occur within the      unfair to penalize the employer for permitting use of the
same 90-day period. See 29 U.S.C. § 2102(d). Where this is         voluntary layoff program.
the case, the employer will be liable under WARN for failure
to notify “unless [it] demonstrates that the employment losses        I disagree. By the explicit terms of the statute, WARN
are the result of separate and distinct actions and causes and     provisions are to have no effect on contractual rights. See 29
are not an attempt by the employer to evade the requirements       U.S.C. § 2105 (“The rights and remedies provided to
of [WARN].” Id.                                                    employees by this chapter are in addition to, and not in lieu
                                                                   of, any other contractual or statutory rights and remedies of
  In this case, the parties stipulate that RMI employed 269        the employees, and are not intended to alter or affect such
workers on the “snapshot” date for the first of the layoffs in     rights and remedies . . . .”). As a result, the reasons for and
question, May 23, 1991. All parties also agree that 85             the existence of a contractual provision governing voluntary
unionized and two non-unionized employees were laid off            layoffs is irrelevant to the interpretation or reach of the
during the 90-day period following the initial layoffs, and        statute. Moreover, because the employer was or should have
that these layoffs may be added together to make 87 total          been aware that WARN required the employer to consider the
layoffs, or 32.34 percent of the total employees. The parties      impact on temporarily laid off workers as well as active
disagree as to the district court’s conclusion that neither the    employees, the employer is not unfairly burdened by
layoffs of the three non-unionized members of the ETP team         considering the impact of its reduction in force on the
nor the layoffs of 27 OCAW members after temporary recall,         employment of temporarily laid off workers who had the
events that took place during the same 90-day period, should       potential to be voluntarily recalled. Finally, in interpreting
be counted with the other layoffs in order to reach the “mass      statutory language, it is hardly the responsibility of the court
layoff” threshold for WARN liability.                              to determine what statutory provisions2 are “fair” in light of
                                                                   the employer’s contractual obligations. For all these reasons,
                       ETP Employees                               the district court erred in concluding that it was unfair to
                                                                   include the 27 employees in the total number of laid off
   The appellants argue that the ETP layoffs, like the earlier     employees.
layoffs of unionized employees, resulted from “[RMI’s]
continuing loss of income and resulting financial decline”           Defendant-appellee next argues that even if the court rejects
and, therefore, that RMI failed to demonstrate “separate and       the reasoning of the district court, the 27 temporarily recalled
distinct actions and causes” for the ETP layoffs that would        employees should be excluded because the contract provides
allow it to avoid WARN liability. See 29 U.S.C. § 2102(d).         that employees who are temporarily recalled under the
RMI argues in response that the layoffs of the three ETP           voluntary recall program shall be treated as if they remained
employees were due to the failure of project co-sponsor
Ginatta to pay its required share of expenses. The company
supported its summary judgment motion on this point with               2
the affidavit of Jerome Bennett, who at the time of the layoffs          Further, even were it relevant whether the contract rights at issue
in question was an RMI executive in charge of employee             inure solely to the employees, the district court’s finding that the
                                                                   voluntary layoff program operates solely for the benefit of employees is
relations. Bennett’s affidavit referred to a letter from John F.   unsupported by the record. Indeed, the record reflects that the employer
Hornbostel, Jr., RMI’s general counsel, to Dr. Marco V.            paid only the wages to which the replacement worker was entitled, not the
Ginatta, dated September 5, 1991, advising Ginatta that, since     rate of the more senior employee on voluntary layoff. Bennett dep., J.A.
                                                                   p. 372. Arguably, at least, the benefits also accrued to the employer.
30    OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                 OCAW, Local 7-629, et al.         7
      v. RMI Titanium Co.                                                                           v. RMI Titanium Co.

employment loss as the result of the employer’s economic            monies previously agreed to be provided by Ginatta to RMI
downturn and overall reduction in force. Defendant-                 “for May and June expenses” had not been received, RMI
appellee’s layoffs of substantial numbers of additional             would “shut down the MX-4 Facility at RMI’s Metals Plant
employees during July and August 1991 had the effect of             in Ashtabula, Ohio, tomorrow, Friday, September 6, 1991.”
eliminating these 27 employees’ reasonable expectations of          The record indicates that the three employees in question
recall and converted their layoffs into qualifying                  were terminated the following Monday. The district court
“employment losses” under the statute when they exceeded            considered the letter in reaching its decision on the motion,
six months. 29 U.S.C. § 2101(a)(6)(B) (defining an                  along with Bennett’s February 1994 affidavit and September
employment loss as a layoff exceeding six months). As a             1993 deposition, in which he attributed the ETP layoffs to
result, they experienced an employment loss at the time their       problems obtaining funding from Ginatta.
voluntary layoffs in August and September 1991 were
rendered permanent. See Jones, 748 F. Supp. at 1284-85                The appellants attempted to rebut RMI’s assertions only
(holding that it would be inconsistent with the meaning and         with the deposition testimony of Warren Jensen, RMI’s vice-
purpose of WARN to conclude that temporarily laid off               president of personnel during 1991. Jensen, who was
workers were not “affected employees” when their                    responsible for personnel matters at all five of RMI’s plants
employment was permanently terminated).                             at the time, stated that RMI’s financial losses caused the
                                                                    “large force reductions in [its] salaried work force” during
   I therefore am persuaded that the majority’s conclusion that     1991. The record in this case shows that part of his
the layoffs of the 27 employees did not constitute a reduction      deposition testimony included the following exchange:
in force misconstrues the structure of the statute and violates
the clear statutory language, the purpose of the statute, and the     Q: Do you know what the reasons were for that large
implementing regulations. As a result, I conclude that both           force reduction in the salaried work force that you’d
the district court and the majority of this court have erred in       already made?
excluding the voluntarily recalled employees as a matter of
law from the mass-layoff threshold count on the basis that the        A: Certainly, it cut costs.
layoffs of these employees resulted in no lost positions.
                                                                      Q: Is it because of decreased sales and decreased profits
  In light of my conclusion, I must address the alternative           during this time frame?
rationale offered by the district court in support of its
decision, together with the remaining arguments raised by             A: RMI was very definitely losing money at that time,
defendant-appellee, but not reached by the district court or the      yes.
majority of this court.
                                                                      We are unable to conclude that these somewhat ambiguous
  The district court separately concluded that the counting of      responses are sufficient to bring the three ETP layoffs within
the 27 employees would be “unfair” to the employer. The             the ambit of the notice requirement, because the record fails
court reasoned that because the voluntary layoff program was
a program adopted by the employer as part of the bargaining
agreement solely for the benefit of the employees, it would be
8       OCAW, Local 7-629, et al.                        No. 98-4336        No. 98-4336                   OCAW, Local 7-629, et al.       29
        v. RMI Titanium Co.                                                                                   v. RMI Titanium Co.

to show the context of the questions put to Jensen.1 We                     involved). I therefore am persuaded that the majority’s
therefore agree with the district court’s determination that                reading of the statute is unsupported by the legislative history.
OCAW and the other plaintiffs failed to make a showing                      Instead, the legislative history lends further support to the
sufficient to raise a genuine issue of material fact as to RMI’s            position of plaintiffs-appellants.
rationale for the September 1991 ETP layoffs. In response to
a defendant’s summary judgment motion, a plaintiff “can no                     At bottom, the majority appears concerned that somehow
longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by            its sense of “fairness” would be offended to hold that these 27
affidavit or other evidence ‘specific facts,’ which for purposes            employees, while temporarily employed, were active
of the summary judgment motion will be taken to be true.”                   employees who experienced an actual layoff during the
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)                    statutory period, instead of employees who had been laid off
(emphasis added) (citation omitted). Here the plaintiffs                    well before the large layoffs of the summer of 1991. This
presented no specific evidence that would credibly controvert               conclusion, however, is neither accurate nor contemplated by
the September 5th letter from Hornbostel to Ginatta or offer                the statute and regulations. To the extent these 27 people
an opposing theory for why the three ETP employees were                     were already laid off, they were laid off with expectations of
terminated. As to the ETP layoffs then, the district court was              recall based on past notification and industry practice. See 20
correct in finding that they could not be aggregated with the               C.F.R. § 639.3(a)(ii) (defining “reasonable expectation of
other 87 layoffs in order to meet the threshold for WARN                    recall”). As the record reflects, these employees were treated
liability.                                                                  by the employer as regular employees. See Bennett dep., J.A.
                                                                            p. 373. They were recalled with some regularity between
            Post-“Voluntary Layoff” Terminations                            their original layoff dates and their final layoffs in August or
                                                                            September 1991. See Voluntary Layoff Program Summary of
   The appellants also argue that 27 unionized employees who                Activity, J.A. pp. 150-52 (showing repeated returns to work
returned to layoff status during the 90-day period beginning                for many of the 27 employees during the period between
July 22, after being recalled to cover more senior employees                November 1990 and August 1991). They also knew from
on voluntary layoff, should have been counted as “laid off”                 experience that the 34 employees immediately preceding them
under WARN. RMI does not dispute that the employment                        on the seniority list had been recalled to employment by the
status of the 27 employees changed during the 90-day period;                company on April 15 and April 29, 1991. See Recall Lists,
rather, it argues that, as a matter of law, “layoffs” resulting             J.A. pp. 272-73; Seniority List, J.A. pp. 214-215. Thus, a
from participation in the voluntary leave/temporary recall                  reasonable factfinder could conclude that prior to August or
program should not be counted as layoffs for WARN                           September 1991, when their voluntary recall periods ended,
purposes.                                                                   these laid-off employees had a reasonable expectation of
                                                                            recall. See Jones v. Kaiser-Roth Hosiery, Inc., 748 F. Supp.
  The district court agreed and based its holding for RMI on                1276, 1284 (E.D. Tenn. 1990) (the fact that 111 employees
two alternative grounds. First, it held that counting the return            were recalled enhanced the expectation of the remaining 159
                                                                            employees that they also would be recalled); Damron v. Rob
                                                                            Fork Mining Corp ., 739 F. Supp. 341 (E.D. Ky. 1990).
    1
      The quoted material appears at the top of a page of the transcribed
deposition. However, the previous pages are missing both from the joint       Moreover, these temporarily laid off employees could
appendix and from the record. We thus have no way to determine whether      experience and did experience a statutorily-defined
or not the colloquy was directed toward the ETP employees.
28   OCAW, Local 7-629, et al.                  No. 98-4336      No. 98-4336                   OCAW, Local 7-629, et al.         9
     v. RMI Titanium Co.                                                                           v. RMI Titanium Co.

the only reading consistent with the treatment of temporarily    to layoff status after temporary voluntary recall as a WARN
laid off employees under the regulations. Under 29 C.F.R.        layoff would be “manifestly unfair” to RMI , since RMI had
§ 639.3(a)(ii),                                                  agreed to the voluntary layoff/temporary recall program as a
                                                                 benefit for its unionized employees. Second, the court held
  Workers on temporary layoff or on leave who have a             that, since Department of Labor regulations implementing
  reasonable expectation of recall are counted as                WARN define a “mass layoff” as a “reduction in force” that
  employees. An employee has a “reasonable expectation           results in an “employment loss” for at least 33 percent of
  of recall” when he/she understands, through notification       employees at a single site of employment, the return of
  or through industry practice, that his/her employment          employees to layoff status after being recalled temporarily
  with the employer has been temporarily interrupted and         could not be considered layoffs contributing to a mass layoff
  that he/she will be recalled to the same or to a similar       because this action involved no elimination of positions, and
  job.                                                           hence no reduction in force. Because we agree with the
                                                                 court’s reasoning on the second ground, we need not address
The regulations require a worker on temporary layoff to be       the first.
counted as an employee whenever that employee has a
reasonable expectation of being recalled. See also Kildea,          The term “reduction in force,” used not only in the Labor
144 F.3d at 407 (holding that “employee” is an individual        regulations but in the WARN statute itself, see 29 U.S.C.
who is actively working or who is temporarily laid off with a    § 2101(a)(3), is not without ambiguity. Congress did not
reasonable expectation of recall). Yet the majority would        define the phrase in enacting WARN, nor did the Department
effectively disregard this definition of employee since a job    of Labor offer clarification when promulgating regulations
loss to a temporarily laid off worker could never result in a    enforcing WARN. In an employment case involving
reduction in the number of positions available and thus a        allegations of age discrimination, however, we defined a
temporarily laid off person could never be counted for           reduction in workforce as a situation where “business
purposes of the threshold mass layoff determination. The         considerations cause an employer to eliminate one or more
majority’s reading, therefore, is indisputably contrary to the   positions within the company” and added that “[a]n employee
clear and unambiguous language of the regulations.               is not eliminated as part of a work force reduction when he or
                                                                 she is replaced after his or her discharge.” Barnes v.
   In addition, as the majority notes, the legislative history   GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
does not discuss or define “reduction in force” or mention the   (emphasis added); see also Matthews v. Allis-Chalmers, 769
elimination of “positions.” That same history, however,          F.2d 1215, 1217 (7th Cir. 1985) (“[B]y definition, when the
clearly reinforces the conclusion that Congress intended a       employer reduces his work force he hires no one to replace
mass layoff to be determined by counting the amount and          the ones he lets go.”). Use of the Barnes definition, which
percentage of employment loss and employees affected, not        appears to reflect common parlance, is appropriate in this case
by counting the amount or percentage of reduction in force or    because it distinguishes the phrase “reduction in force” from
whether positions have been eliminated. See H.R. Conf. Rep.      the term “employment loss,” also present in WARN’s
No. 100-576, at 1046 (1988), reprinted in 1988 U.S.C.C.A.N.      definition of a mass layoff. See 29 U.S.C. § 2101(a)(6)
2078, 2079 (referring to employment losses and the               (defining “employment loss” as “an employment termination,
definitions of employment losses, and justifying notice          other than a discharge for cause, voluntary departure, or
requirement on disruption to communities and individuals         retirement . . . a layoff exceeding 6 months, or . . . a reduction
10    OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                   OCAW, Local 7-629, et al.       27
      v. RMI Titanium Co.                                                                             v. RMI Titanium Co.

in hours of work of more than 50 percent during each month          own definition or insertion of these terms to eliminate from
of any 6-month period”). Applying this definition, we               the threshold count two substantial groups of employees who
conclude that no reduction in force occurred when                   expressly were included in a definition Congress did make:
temporarily-recalled employees were again laid off, because         the definition of employees experiencing an “employment
they were replaced by the senior employees returning from           loss.” The majority’s interpretation flies in the face of general
voluntary layoff status. This distinguishes these “layoffs”         principles of statutory construction under which the court is
from those of the other 85 unionized employees separated            required to give meaning to all terms in a provision and to
from employment during July and August 1991, undisputedly           interpret one statutory term in a manner that will not conflict
laid off due to RMI’s financial losses and for whom no              with other terms.
replacements were hired. Because the return to layoff status
of the 27 temporarily-recalled employees involved no                   Moreover, contrary to the majority’s tortured reading of the
reduction in force, we agree with the district court’s decision     statutory language to limit definitions adopted by Congress,
that these “layoffs” may not be added to the other layoffs to       a straightforward reading of the statute permits giving
create a mass layoff triggering WARN liability.                     meaning to all terms, including “reduction in force” and
                                                                    “employment loss.” The use of “reduction in force” in the
                     III. CONCLUSION                                statute is solely a means of describing a significant
                                                                    elimination of jobs “which . . . is not the result of a plant
   WARN expressly encourages employers to notify                    closing.” The resulting effect of this reduction in force is
employees before permanent layoffs are effected, whether or         separately described under the statute as the number and
not the statute’s triggering thresholds are met. See 29 U.S.C.      percent of employees experiencing an employment loss.
§ 2106 (“It is the sense of Congress that an employer who is
not required to comply with the notice requirements of section         As a result, even accepting that the term “reduction in
2102 of this title should, to the extent possible, provide notice   force” requires — as the majority holds — that actual job
to its employees about a proposal to close a plant or               elimination must occur in order for a “mass layoff” to occur
permanently reduce its workforce.”). These sentiments were          — no dispute exists that a reduction in force has occurred
echoed by the Department of Labor in promulgating                   during the layoffs at RMI in the summer of 1991. At least 87
regulations enforcing the statute. See 20 C.F.R. § 639.1(e)         employees undisputedly lost their positions and were not
(“It is civically desirable and it would appear to be good          replaced during the economic downturn experienced by RMI.
business practice for an employer to provide advance notice         Thus, a “reduction in force” unquestionably has occurred.
to its workers or unions, local government and the State when       The remaining issue is whether that reduction in force “results
terminating a significant number of employees. . . . The            in an employment loss . . . for . . . at least 33 percent of the
Department encourages employers to give notice in all               employees . . . .” In other words, as the statute
circumstances.”) (emphasis added). In the summer of 1991,           unambiguously states, the definition does not require a
RMI laid off 87 employees with no apparent notice, two              reduction in force of 33 percent of the positions. It requires
terminations short of the number necessary to make this             a reduction in force resulting in an employment loss for 33
action a mass layoff. In so doing, RMI violated the spirit, if      percent of the employees.
not the letter of the law, providing these workers and their
families with no transition time to seek alternative                  This reading of the statute is not only a preferred reading of
employment or training for work outside the manufacturing           the language and structure of Congress’ definition, it also is
26   OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                       OCAW, Local 7-629, et al.            11
     v. RMI Titanium Co.                                                                                 v. RMI Titanium Co.

concludes that because the 27 temporarily recalled employees       sector, and  causing almost a decade’s worth of ensuing
were replaced by the returning senior employees, they may          litigation.2
not be counted as part of a reduction in force. The majority
therefore concludes that it need not determine whether these          Nevertheless, RMI has won the numbers game these
employees have experienced an “employment loss” as defined         parties ultimately played. We agree with the district court that
by the statute.                                                    there is no genuine issue of material fact that RMI terminated
                                                                   87 employees within the 90-day period beginning July 22,
   The majority’s interpretation of the statutory “reduction in    1991, and that only these layoffs may be counted toward
force” language renders redundant, or meaningless in most          triggering the 33 percent threshold for purposes of WARN’s
circumstances, the statutory requirement that the employer         advance notification provision. As a matter of law, then, the
determine whether a particular percentage of the employees         aggregated layoffs did not count as a mass layoff under
has experienced an “employment loss.” Under the broad              WARN for which affected employees must be notified. We
definition of “employment loss” contained in the statute,          therefore AFFIRM the judgment of the district court granting
layoffs of more than six months (as opposed to layoffs of less     summary judgment in the defendant’s favor.
than six months) and certain reductions in hours of work both
amount to “employment losses” covered by the statute. See
29 U.S.C. § 2101(a)(6). Yet such statutorily defined
employment losses typically would not result in a loss of a
position (i.e., a reduction in force under the majority’s rule).
As a result, under the majority’s rule, an employee on a layoff
of less than six months who, during the statutory “mass
layoff” period, had his layoff converted to a layoff of more
than six months would never be counted as an employee —
and he therefore would never experience a countable
employment loss for determining a mass layoff — because
his loss would never result in the loss of a position, since he
already was on layoff. Similarly, an employee who had his
work hours reduced more than 50 percent in each month of
any six-month period would never be counted because his
“employment loss” would never result in the actual
elimination of a position.          Thus, despite the clear
Congressional definitions of the persons counted as
employees who experience employment losses under the
statute, the majority would render those definitions
meaningless.
   Nowhere in the statute did Congress define “reduction in            2
                                                                         See 20 C.F.R. § 639.1(e) (“It is . . . prudent for employers to weigh
force” and nowhere in the statute did Congress mention the         the desirability of advance notice against the possibility of expensive and
elimination of “positions.” Yet the majority would rely on its     time-consuming litigation to resolve disputes where notice has not been
                                                                   given.”).
12   OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                   OCAW, Local 7-629, et al.         25
     v. RMI Titanium Co.                                                                             v. RMI Titanium Co.

                   __________________                              including at times serving as temporary recalls to fill positions
                                                                   made available when more senior employees took advantage
                        DISSENT                                    of the company’s voluntary layoff program provided under
                   __________________                              the contract. J.A. pp. 370-71. Under the voluntary layoff
                                                                   program, regularly employed but more senior employees
  DOUGLAS W. HILLMAN, District Judge, dissenting.                  could, if they wished, elect to accept voluntary layoff for a 30-
Despite the apparent ease with which the majority disposes of      day period if an employee on temporary layoff was available
plaintiffs-appellants’ claims, I am persuaded that plaintiffs-     and qualified to fill the position. Id.
appellants have presented sufficient evidence to create a
genuine issue of material fact whether defendant-appellee            As noted, the 27 employees at issue here undisputedly were
engaged in a mass layoff as defined by the Worker                  returned to layoff status during the 90-day period after July
Adjustment Retraining and Notification Act (“WARN”), 29            22, 1991, after the more senior employees they had replaced
U.S.C. § 2101(a)(3)(B)(i)(I). Consequently, I am satisfied         returned to work. The majority holds that these temporarily
that the district court’s grant of summary judgment to the         recalled employees who were again laid off may not be
employer was error, and I respectfully dissent.                    counted to determine whether a mass layoff occurred because
                                                                   their layoffs, after voluntary recall, did not amount to a loss in
                               I.                                  a position in the workforce, and thus did not constitute a
                                                                   “reduction in force” under the statutory definition.
  As the majority observes, many of the facts involved in this
case are undisputed. I concur in the overview of the                  I respectfully suggest that the majority’s reading of the
procedural and factual background, as set forth in Section I of    statute distorts the plain meaning of the provision when read
the majority opinion. However, I am persuaded that the             as a whole and that such reading further conflicts with the
majority has misstated or failed to acknowledge a wide range       applicable regulations. As previously noted, a “mass layoff”
of factual considerations during the course of its discussion of   is defined in relevant part as a “reduction in force which . . .
legal issues under Section II of the opinion. In addition, the     is not the result of a plant closing; and . . . results in an
majority has failed to explain how its conclusions are             employment loss for . . . at least 33 percent of the employees
consistent with an entire reading of the statutory definition of   . . . .” 29 U.S.C. § 2101(3)(B)(i). The majority, in singling
“mass layoff” or with the statute’s implementing regulations.      out the words “reduction in force” acknowledges that the
Therefore, for the reasons set forth in the remainder of this      phrase is not defined either in the statute or legislative history.
opinion, I dissent from part II and from the conclusion            Nevertheless, the majority concludes based on cases
reached by the majority opinion.                                   considering the employee’s evidentiary burden in reduction in
                                                                   force cases alleging age discrimination, that when an
                              II.                                  individual has been replaced, he or she may not be considered
                                                                   to have been eliminated as part of a reduction in force. Citing
  The purpose of the WARN act is to “ensure that 'workers          Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
receive advance notice of plant closures and mass layoffs that     (“An employee is not eliminated as part of a work force
affect their jobs.’” Kildea v. Electro-Wire Products, Inc., 144    reduction when he or she is replaced after his or her
F.3d 400, 405 (6th Cir. 1998) (quoting Marques v. Telles           discharge). Applying that reasoning, developed in an entirely
                                                                   separate context for entirely different reasons, the majority
24    OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.        13
      v. RMI Titanium Co.                                                                            v. RMI Titanium Co.

credibility challenges and inconsistencies in the employer’s        Ranch, Inc., 131 F.3d 1331, 1333 (9th Cir. 1997). Under
proffered explanation, the majority denies plaintiffs-              WARN,
appellants their day in court and the opportunity for effective
cross-examination of defendant-appellee’s witnesses                   [a]n employer shall not order a plant closing or mass
regarding those inconsistencies. The majority surprisingly            layoff until the end of a 60-day period after the employer
grants conclusive weight to the employer’s explanation                serves written notice of such an order . . . to each
simply because it has claimed that the three salaried ETP             representative of the affected employees as of the time of
employees were laid off for a separate and distinct reason            the notice or . . . to each affected employee . . . .
from the remaining 87 employees — effectively relieving
defendant-appellee of its statutory obligation to prove that the    29 U.S.C. § 2102(a). A mass layoff that involves more than
proffered reason for the ETP layoffs was the true reason for        50 employees and fewer than 500 employees is defined as
those layoffs.
                                                                      a reduction in force which . . . is not the result of a plant
  For all of these reasons, I am persuaded that the evidence is       closing and . . . results in an employment loss at the
more than sufficient to withstand summary judgment.                   single site of employment during any 30-day period for
Plaintiffs are entitled to a jury determination of the reason for     . . . at least 33 percent of the employees (excluding any
defendant-appellee’s layoffs of ETP employees.                        part-time employees) . . . .

  B. Voluntarily Recalled Employees                                 29 U.S.C. § 2101(a)(3)(B)(i)(I). The required employment
                                                                    loss of § 2101(a)(3) is defined as
  Plaintiffs-appellants also assert that the trial court
committed error when it held as a matter of law that an               an employment termination, other than a discharge for
additional 27 unionized employees, who were laid off during           cause, voluntary departure, or retirement, . . . a layoff
the relevant time period after having been temporarily                exceeding 6 months, or . . . a reduction in hours of work
recalled, should not be counted for purposes of determining           of more than 50 percent during each month of any 6-
whether a mass layoff has occurred. The majority affirms the          month period.
district court, a decision from which I respectfully dissent.
                                                                    29 U.S.C. § 2101(a)(6).
  The 27 employees at issue initially were temporarily laid
off on either October 1, 1990 or November 19, 1990, well              Pursuant to the regulations developed under WARN, in
before the date of the first layoffs at issue in this case. J.A.    determining the number of employees (and thereby the
pp. 151-52. Like all temporarily laid off employees, the 27         percentage of employees involved in a layoff) an employer
continued to be listed as employees of the company and were         may be said to employ,
considered regular employees of the company. See Plant
Seniority List, J.A. pp. 215-16; Bennett dep., J.A. p. 373.           [w]orkers on temporary layoff or on leave who have a
                                                                      reasonable expectation of recall are counted as
  As temporarily laid off employees, the 27 employees were            employees. An employee has a “reasonable expectation
required to report their availability for work. See Notices of        of recall” when he/she understands, through notification
Layoff, J.A. pp. 147-48. They were eligible to be recalled by         or through industry practice, that his/her employment
the company when the company deemed it necessary,                     with the employer has been temporarily interrupted and
14    OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.       23
      v. RMI Titanium Co.                                                                            v. RMI Titanium Co.

  that he/she will be recalled to the same or to a similar          salaried work force reductions before October 3, 1991 (which
  job.                                                              included ETP layoffs) had been made for a single reason —
                                                                    to cut costs.
20 C.F.R. § 639.3(a)(ii).
                                                                      In sum, plaintiffs-appellants provided three separate types
  As the majority observes, the regulations set a “snapshot”        of challenges to defendant-appellee’s explanation for the ETP
date upon which the calculations of numbers of employees            layoffs: (1) the statutory presumption that temporally
and numbers of employees experiencing an “employment                connected layoffs have the same cause; (2) inconsistencies
loss” shall be calculated. See 20 C.F.R. § 639.5(a)(2). That        between defendant-appellee’s conduct and its proffered
date is the date 60 days preceding the first layoffs triggering     explanation, which cast substantial doubt on the credibility of
the duty to provide notice.                                         the explanation; and (3) testimony in which defendant-
                                                                    appellee’s vice-president for personnel failed to distinguish
   In the instant case, the parties agree that the relevant         the ETP layoffs in circumstances in which one reasonably
“snapshot” notice date is May 23, 1991. The parties also            could conclude he would have claimed such a distinction if it
stipulate (for purposes of this appeal) that RMI employed 269       were true. In ignoring the presumption under the statute as
employees on the “snapshot” date. As a result, for purposes         well as the circumstantial evidence tending to undermine the
of this appeal, it is undisputed that 89 employees must have        employer’s explanation, the majority engages in a restrictive
experienced a countable employment loss during the relevant         reading of the statute to the benefit of the employer and to the
period in order to trigger the notice requirement of the statute.   obvious detriment of employees. Such a restrictive reading is
The district court found and the parties have not appealed that     particularly inappropriate where, as here, the statute is
at least 87 employees experienced a countable employment            remedial in nature and must be interpreted in favor of the
loss during the relevant statutory period.                          class it is designed to benefit. See, e.g., United Paperworkers
                                                                    Int’l Union v. Alden Corrugated Container Corp., 901 F.
  At issue, therefore, is whether at least two additional           Supp. 426, 439 (D. Mass. 1995); Washington v. Aircap Indus.
employees may be considered to have experienced a                   Corp., 831 F. Supp. 1292, 1295 (D.S.C. 1993).
countable employment loss during the relevant period. If so,
then all agree the provisions of WARN are applicable.                 The court also disregards the Supreme Court’s mandate on
                                                                    summary judgment:
  Plaintiffs-appellants contend here, as they did below, that
two additional groups of employees, both of which include             Credibility determinations, the weighing of evidence, and
more than two employees, must be counted in determining the           the drawing of legitimate inferences from the facts are
number of affected employees. First, plaintiffs-appellants            jury functions, not those of a judge, whether he is ruling
assert that three additional salaried employees in the                on a motion for summary judgment or for a directed
Electrolytic Titanium Process (“ETP”) Department, a research          verdict. The evidence of the nonmovant is to be
and development project, also were laid off during the                believed, and all justifiable inferences are to be drawn in
relevant period for the same reason as the other 87 employees.        his favor.
Defendant-appellee contends and the majority holds that, as
a matter of law, the three ETP employees were laid off for a        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
separate and distinct reason and therefore may not be               (emphasis added). In declining to consider the reasonable
considered to be part of the mass layoff.
22    OCAW, Local 7-629, et al.                  No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.      15
      v. RMI Titanium Co.                                                                          v. RMI Titanium Co.

asked directly and separately about the treatment of the             Second, plaintiffs-appellants contend that 27 non-salaried
salaried ETP employees.                                           employees, who already were on temporary layoff during the
                                                                  period preceding the layoffs beginning July 22, 1991, also
  To the contrary, Jensen’s testimony provides some credible      should be counted. These employees were on temporary
evidence that defendant-appellee’s explanation is not worthy      layoff, but had been recalled as part of a voluntary layoff
of belief. Jensen testified about the explanation for salaried    program provided in the collective bargaining agreement.
workforce layoffs that he gave to union officials shortly after   Under the voluntary layoff program, more senior employees
the ETP layoffs, when he allegedly referred to “the large force   could voluntarily take layoff status for 30-day periods, during
reductions . . . made to our salaried workforce.” In his          which periods they would be replaced by previously laid off,
presentation in October 1991 and at his deposition, Jensen, a     more junior employees. At the end of the 30-day recall
vice-president of defendant company, made no attempt to           periods, these 27 voluntarily recalled employees were again
distinguish any one group of salaried employee layoffs from       laid off when the senior employees returned to work.
any other. A failure by RMI’s vice-president for personnel to     However, when laid off at this time (on either August 5, 1991
distinguish the ETP layoffs — which RMI now contends              or September 2, 1991), these employees were laid off
were made for a different reason — is itself suggestive that no   permanently. Plaintiffs therefore assert that these 27
different reason did in fact exist. Cf. Fed. R. Evid. 801(d)(2)   employees experienced an employment loss within the
& Advisory Committee Notes (including as statements the           meaning of WARN that was caused by the same reason as the
failure to speak under circumstances in which a reasonable        other 87 layoffs, i.e. economic downturn. Defendant-appellee
person would do so).                                              asserts and the majority holds that, as a matter of law, the 27
                                                                  non-salaried employees may not be considered to have been
  Moreover, Jensen’s remaining answers, while susceptible         part of a reduction in force and therefore may not be counted.
of more than one interpretation, may be read as an
unambiguous response to plaintiffs’ questions regarding the         I disagree with the majority’s conclusion regarding both
reasons for the salaried work force layoffs that had been made    groups of employees.
before October 3, 1991:
                                                                    A. ETP Employees
  Q    Did you know the reasons for the large work force
       reductions in the salaried work force that you’d              Defendant-appellee asserts that the three ETP employees
       already made?                                              laid off on September 14, 1991, were laid off for a separate
                                                                  and distinct reason other than the economic downturn causing
  A    Certainly, it cut costs.                                   the layoffs of the other 87 employees. Defendant-appellee
                                                                  contends therefore that as a matter of law the three ETP
  Q    Is it because of decreased sales and decreased profits     employees may not be counted in determining whether a mass
       during this time frame?                                    layoff has occurred.
  A    RMI was very definitely losing money at that time,           In determining whether a mass layoff has occurred, the
       yes.”                                                      statute mandates the aggregation of all layoffs occurring
                                                                  within a 90-day period, unless the employer is able to prove
J.A. p. 348 (emphasis added). When read together, Jensen’s        both that the cause of a particular layoff is separate and
explanations may reasonably be interpreted to mean that all
16   OCAW, Local 7-629, et al.                   No. 98-4336      No. 98-4336                   OCAW, Local 7-629, et al.      21
     v. RMI Titanium Co.                                                                            v. RMI Titanium Co.

distinct and that the employer’s actions are not taken to avoid   Jensen testified that at the time of his meeting with union
the requirements of WARN:                                         representatives in early October, he had been questioned
                                                                  about both the company’s treatment of and its plans for the
  [I]n determining whether a plant closing or mass layoff         salaried workforce. Jensen testified that at this meeting he
  has occurred or will occur, employment losses for 2 or          had displayed an exhibit on the overhead projector showing
  more groups at a single site of employment, each of             workforce reductions to salaried employees. The relevant
  which is less than the minimum number of employees              portion of Jensen’s deposition testimony discussing the
  specified in section 2101(a)(2) or (3) of this title but        October 1991 meeting is somewhat broader than the colloquy
  which in the aggregate exceed that minimum number,              quoted by the majority:
  and which occur within any 90-day period shall be
  considered to be a plant closing or mass layoff unless the        A. We — during the course of our discussion on
  employer demonstrates that the employment losses are                 October 3rd, somebody from the union . . . raised the
  the result of separate and distinct actions and causes and           question, well, what was going to be done with the
  are not an attempt by the employer to evade the                      salaried people? In response to such questions, such
  requirements of this chapter.                                        comments, I used an overhead, an exhibit showing
                                                                       the large force reductions that had taken place —
29 U.S.C. § 2102(d) (emphasis added). In other words, the              that we had made in our salaried work force.
statute creates a rebuttable presumption that multiple layoffs
occurring within a 90-day period are the result of the same         Q    You’d already made?
cause. Moreover, while the statute does not specify the
meaning of the phrase “separate and distinct actions and            A    Already made. Correct.
causes,” courts have concluded that “layoffs occasioned by a
continuing and accelerating economic demise are not the             Q    Do you know what the reasons were for that large
result of separate and distinct causes.” United Paperworkers             force reductions in the salaried work force that
Int’l Union v. Alden Corrugated Container Corp., 901 F.                  you’d already made?
Supp. 426, 435-36 (D. Mass. 1995).
                                                                    A    Certainly, it cut costs.
   In the instant case, the employer argues that the ETP
department was jointly funded by the employer and an Italian        Q    Is it because of decreased sales and decreased profits
partner company, Ginatta Torino Titanium (“GTT”).                        during this time frame?
Defendant-appellee asserts that the three ETP employees were
laid off as a result of GTT’s failure to pay its share of the       A RMI was very definitely losing money at that time,
costs of operating the department. In support of its asserted       yes.
independent reason for layoff of the ETP employees,               J.A. p. 348 (emphasis added). The majority concludes that
defendant-appellee proffered the affidavit of Jerome Bennett,     the quoted language is insufficient to create a genuine issue of
stating that the three ETP employees were laid off on             fact as to whether the salaried ETP employees were laid off
September 14, 1991, “due to a funding problem involving an        for the same or different reasons. Specifically, the majority
outside company. As reflected in the RMI documents                concludes that Jensen’s testimony would only undermine
attached as Exhibits G and H.” J.A. p. 205 ¶ 22. The              defendant-appellee’s proffered explanation if Jensen had been
20       OCAW, Local 7-629, et al.                        No. 98-4336        No. 98-4336                  OCAW, Local 7-629, et al.        17
         v. RMI Titanium Co.                                                                                  v. RMI Titanium Co.

that the funding issues1 with GTT were either resolved or                    referenced Exhibit H consists of a letter dated September 5,
acquiesced to by RMI.                                                        1991 from RMI’s Vice-President, General Counsel and
                                                                             Secretary, John F. Hornbostel, Jr., to a representative of GTT
  Further, contrary to what the majority states, defendant-                  stating
appellee did not lay off the three employees on “the following
Monday” after the threatened shutdown date, September 6,                       This is to advise you that in accordance with the
1991. Instead, the company did not lay off any employees                       agreement reached between RMI and GTT in your
until September 14, 1991, nine days after the letter was                       meeting with Fred Gieg on August 28, 1991, here in
written and eight days after the supposed shutdown. Bennett                    Niles and further in a conversation that Fred had with
Aff., J.A. p. 205 ¶ 22 (stating that employees were laid off on                you yesterday, it was definitely agreed that unless RMI
September 14, 1991).                                                           received by Thursday, September 5, 1991, the amount of
                                                                               $382,796.94, which is payment for May and June
   As a result, a reasonable jury would be entitled to conclude                expenses, that RMI, upon such non-receipt, would shut
that the stated explanation by the employer that the three                     down the MX-4 Facility at RMI’s Metals Plant in
employees were laid off for reasons other than economic                        Ashtabula, Ohio, tomorrow, Friday, September 6, 1991.
reasons was not credible because the stated reason was
inconsistent with what the company actually did. See                           Since we haven’t yet received the money as promised by
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)                      you, we will proceed with the shutdown.
(credibility determinations and the drawing of legitimate
inferences is for the jury, not the court). The mere fact that               J.A. p. 247.
RMI threatened a partner in order to coerce payment of
monies owed does not establish that RMI’s actions short of                     On the basis of the affidavit and the letter, both the district
the threat (that is, laying off three employees instead of                   court and the majority hold that, as a matter of law, the three
shutting down the project) were taken for the threatened                     ETP employees were laid off for a different and distinct
reason. The jury therefore would be entitled to infer from the               reason than the other 87 employees, who were laid off
circumstantial evidence alone that the proffered explanation                 because of the economic conditions in the company and the
was not the true reason for the layoffs and that defendant-                  market. I disagree.
appellee had failed to prove that the presumption under the
statute was overcome.                                                            As previously noted, the statute creates a presumption that
                                                                             multiple layoffs occurring during a 90-day period have the
  Moreover, to further bolster their claim of pretext,                       same cause and should be aggregated for purposes of
plaintiffs-appellants produced the deposition testimony of                   determining whether a mass layoff has occurred. See 29
Warren Jensen, appellee’s vice-president of personnel.                       U.S.C. § 2102(d) (“employment losses for 2 or more groups
                                                                             . . . which occur within any 90-day period shall be considered
                                                                             to be . . . a mass layoff unless the employer demonstrates that
     1                                                                       the employment losses are the result of separate and distinct
      It is noteworthy that the record contains no assertion by the          actions and causes and are not an attempt by the employer to
company that the monies owed by GTT were never paid. See Bennett
dep., J.A. pp. 362-63 (stating only that project experienced “intermittent   evade the requirements of this chapter.”) (emphasis added).
shortages of money based upon the commitment that the Italians had           See also H.R. Conf. Rep. No. 100-576, p. 1050 (1988),
made to fund some portion of it.” (Emphasis added.)                          reprinted in 1988 U.S.C.C.A.N. 2078, 2083 (using words
18   OCAW, Local 7-629, et al.                    No. 98-4336      No. 98-4336                  OCAW, Local 7-629, et al.       19
     v. RMI Titanium Co.                                                                            v. RMI Titanium Co.

“presumptively” and “presumption”). The employer is                used to challenge credibility in other contexts. Id. (“It is the
permitted by statute to prove that a separate cause occasioned     rare situation when direct evidence of discrimination is
certain layoffs. The burden of proof, however, is placed           readily available, thus victims of employment discrimination
squarely on the employer. Id. The employer’s explanation,          are permitted to establish their cases through inferential and
therefore, is nothing more than an alternative explanation         circumstantial proof.”).
which, if challenged as to credibility, creates a typical fact
question for the jury to resolve. If the jury were to find the       Further, plaintiffs’ burden of proving motive under WARN
explanation not to be credible, defendant-appellee would have      unquestionably is lower than that burden under federal
failed in meeting its burden of proof and plaintiffs-appellants    discrimination statutes.        Although the means for
would be entitled to aggregate the ETP layoffs.                    demonstrating pretext under the two models may be
                                                                   somewhat parallel, the burden of proving motive under
  As a result, an employer’s claimed alternative reason is not     WARN is placed on the employer, whereas under Title VII,
entitled to presumptive truthfulness. At best, the employer’s      the burden of proof remains always on plaintiffs. See 29
proffered explanation may be given no more weight than is          U.S.C. § 2102(d). As a result, under WARN the employer
given the “legitimate nondiscriminatory explanation” an            bears the burden of demonstrating that the proffered
employer is required to articulate in response to a prima facie    explanation is not pretextual.
case of discrimination under Title VII, 42 U.S.C. § 2000(e).
See, e.g. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d              Here, plaintiffs-appellants have raised substantial
1078, 1084 (6th Cir.1994) (applying circumstantial evidence        credibility challenges to the employer’s stated reason for the
test for proving discrimination, including employer’s burden       layoffs of the ETP employees. First, the explanation given by
to articulate nondiscriminatory explanation, and discussing        the employer for its actions is inconsistent with its own
manner in which plaintiff may prove the explanation is             conduct. In the September 5, 1991 letter to GTT, defendant-
pretextual). A plaintiff may show pretext by producing             appellee threatened to shut down the operation of the entire
"sufficient evidence from which the jury may reasonably            ETP program on September 6, 1991 unless the GTT
reject the employer's explanation." Id. at 1083. As the courts     immediately paid the monies owed. Defendant-appellee,
repeatedly have observed, in Title VII, ADEA and ADA               however, did not shut down the ETP program on September
actions, plaintiffs-appellants are not required to introduce       6, 1999 as threatened. Instead, the company laid off only
direct evidence to challenge the credibility of any evidence,      three of the department’s 13 employees, a pattern more
including the employer’s explanation. Id. at 1083 (stating that    consistent with the overall economic downsizing in the plant
parties need not show directly that the illegal reason was the     than with the threatened shutdown of a department. In
actual reason, but instead may challenge the credibility of the    addition, in contrast with the representations contained in the
explanation, thereby creating inference that real reason was an    letter that the project would be shut down on September 6,
impermissible one). Direct evidence of illegal purpose             1991, the company did not shut down the program until
generally is not available. See Kline v. Tenn. Valley Auth.,       February 1992, at approximately the same time it closed the
128 F.3d 337, 348 (6th Cir. 1997) (ADEA case) (“Rarely can         entire plant. Bennett Dep., J.A. pp. 363-64 (project closed at
discriminatory intent be ascertained through direct evidence       about the same time as the plant). This action is in direct
because rarely is such evidence available.”). Instead,             contravention of the threatened shutdown date and suggests
plaintiffs are entitled to dispute defendant’s explanations with
the sort of circumstantial evidence and reasonable inferences
